Registration test decision

Application name	Ngurra Kayanta 2	
Name of applicant	Bobby West, Joshua Booth	
NNTT file no.	WC2015/003	
Federal Court of Australia file no.	WAD326/2015	
Date application made	30 June 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 do not accept this claim for registration pursuant to s 190A of the Native Title Act 1993 (Cth). 
For the purposes of s 190D(3), my opinion is that the claim does satisfy all of the conditions in s 190B. Nevertheless I cannot accept the claim for registration because the claim does not satisfy all of the conditions in s 190C. 
	Date of decision:	9 September 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 2 native title determination application (WAD326/2015) to the Native Title Registrar (the Registrar) on 30 June 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 30 June 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 not 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 Ngurra Kayanta 2 native title determination application overlaps the registered Ngurra Kayanta claim (WAD410/2012) (NK) filed in 2012. The Ngurra Kayanta application was recently amended, principally making changes to the description of the native title claim group, and was accepted for registration on 31 July 2015. I was the delegate who considered the claim for registration.
[5]	The Ngurra Kayanta native title claim group is the same one that makes the Ngurra Kayanta 2 application, although different persons comprise the applicant group authorised to make the application. The Court made orders on 24 July 2015 that (amongst other things) the proceedings in both matters be listed together and ‘The Statement of Issues, Facts and Contentions (as amended from time to time) in WAD410/2012 be adopted in [the Ngurra Kayanta 2] proceeding ...’—at [2]. The State of Western Australia (the Respondent) is to ‘provide the Applicant with a response to the occupation evidence contained in Attachment E to the Form 1 Native Title Determination Application’ [Ngurra Kayanta 2] and advise of its position in relation to the application of ss 47A and 47B in both Ngurra Kayanta and Ngurra Kayanta 2 proceedings—at [3]. It is my understanding that the Ngurra Kayanta 2 application is made with the view to meeting the requirements that will allow any extinguishment of native title to be disregarded pursuant to provisions in ss 47 (as per the claim made at Schedule B in both the Ngurra Kayanta and Ngurra Kayanta 2 applications).
[6]	My consideration under s 190A is of the new Ngurra Kayanta 2 application as referred to the Registrar on 30 June 2015.
Information considered when making the decision
[7]	Section 190A(3) sets out the information to which the Registrar must have regard in considering a claim under s 190A and provides that the Registrar ‘may have regard to such other information as he or she considers appropriate’.
Subsection 190A(3)(a): Application and other documents provided by the applicant
[8]	As required by s 190A(3)(a), I have had regard to information in the application.
Subsection 190A(3)(b): Searches conducted by the Registrar of State/Commonwealth interest registers
[9]	I note that there is no information before me of the kind identified in s 190A(3)(b). 
Subsection 190A(3)(c): Information supplied by Commonwealth/State
[10]	The State of Western Australia (the state government) provided submissions in relation to the application of the registration test to the Registrar on 28 July 2015.
Section 190A(3): other information to which Registrar considers it appropriate to have regard
[11]	I have had regard to my reasons for decision in relation to the amended NK application and to information contained in an overlap analysis and geospatial assessment by the Tribunal’s Geospatial Services dated 13 July 2015 (the geospatial report).
Procedural fairness steps
[12]	As noted above, I have considered the state government’s submission in relation to the registration of this application. On 10 August 2015, I wrote to the applicant advising that I would be considering the information contained in the submission in my application of the registration test, and provided the applicant with the opportunity to comment in relation to them. On 24 August 2015 the Tribunal’s case manager confirmed that the applicant had no comments or submissions to make in relation to the state government’s submission. 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
[13]	In assessing the Ngurra Kayanta 2 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].
State government’s submissions
[14]	The State government submits that the application does not meet the requirements for registration because it fails to comply with ss 62(2)(b) and 190B(2) because the map at ‘Attachment C appears on its face to be a map of the claim area in the NK #1 [Ngurra Kayanta] application, and is named as such’. 
Description of the area covered by the application
[15]	The description of the area covered by the application at Schedule B is broken down into three categories:
•	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 identified by way of general and specific exclusion statements though reference to the relevant provisions of the NTA.
[16]	Part A deals with the identification of the external boundaries of the claim, Part C deals with those areas not covered by the application, subject to the statements made in Part B claiming the benefit of certain provisions that allow for extinguishment to be disregarded.
[17]	Attachment B, entitled Identification of Boundaries, provides a description of the external boundary of the area covered by the application. It takes the form of a metes and bounds description that references Reserve 26399 and contiguous native title determination boundaries.
[18]	Schedule C refers to Attachment C which is an A4 copy of a coloured map entitled Ngurra Kayanta – Native Title Application (WC2012/013) prepared by Landgate – Native Title Spatial Services (10/04/2015). It 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
[19]	As the state government submits, the map at Attachment C is identified as a map of the Ngurra Kayanta claim (WA410/2012). This is the name of the underlying claim made by another applicant on behalf of the same native title claim group which brings the Ngurrua Kayanta 2 application (to which I have referred in the Application Overview). That this is the situation is confirmed by statements made in some of the affidavits of members of the claim group attached to the application at Attachment E. For example:
I understand that there will be an additional claim filed over the existing Ngurra Kayanta claim in 2015...—Joshua Booth at [3].
and
I am a claimant on the Ngurra Kayanta native title claim WAD 410 of 2012 (Claim) ... Ngurra Kayanta mob are putting another claim on top of the Claim in June 2015. We are putting in the extra claim so we can give more information to government mob, and maybe the Court, about how our families go to our ngurrara (country where we come from)...—Josephine Nagala at [2] and [4].
[20]	It is therefore clear to me that the error is in the naming of the map and not in its attachment to this application. In my view, the incorrect naming of the map is not significant as the technical description of the external boundaries at Attachment B makes it clear what area the application in fact covers. The map, whatever its naming, is consistent with that technical description (and is the confirmed intention of members of the native title claim group). Together, these two attachments provide information in relation to the external boundaries of the area covered by the application which allows me to be reasonably certain of the location of those boundaries on the surface of the earth. Further, the geospatial report makes the assessment that the description and the map are consistent such that the area covered by the application is readily identifiable.
[21]	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]	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. This, however, 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 this description, 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, as required by s 62(2)(d), of native title rights and interests claimed in relation to the area covered by the application:
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, 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].
The information in the application
[38]	Attachments E (comprising of 12 affidavits affirmed or sworn by members of the native title claim group), F (a detailed general description), G (activities undertaken) and M (traditional physical connection) contain the factual basis material on which the claim in the application relies. The affidavits relate detailed information attested to by members of the native title claim group as to their connection to country, the group’s past and current occupation, activities undertaken in the claim area and people’s rights and responsibilities under their traditional laws and customs. Attachment F is the same attachment that accompanied the first Ngurra Kayanta application (WAD410/2014). It provides a summary of the research and evidence conducted in relation to the application area and the Ngurra Kayanta native title claim group – addressing current and previous association with the claim area, the traditional laws and customs of the native title claim group and their continuing acknowledgement and observance.
State government’s submissions
[39]	The State government has provided submissions in relation to what it views are a number of inconsistencies in each of the twelve affidavits. These amount to whether and when affidavits were sworn or affirmed, discrepancies with the dates of maps annexed to some of the affidavits and the reference in some of the affidavits to details not contained in the annexed map. Principally, the State government is of the view that it is not certain whether, in some instances, deponents were shown the map included as an annexure at the time of execution of her or his affidavit. It submits that unless there is verification, such inconsistencies raise a concern ‘as to the weight to be given to the affidavits in question’ and that information dependent on these inconsistencies must be ‘disregarded completely’—at pages 3 to 4. I do not agree that some of the information in the affidavits should be disregarded, nor that weight should not be given to the evidence attested to by the deponents.
[40]	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. In my view, it is sufficient for me to understand that a number of members of the claim group made a significant journey to the very remote desert claim area – significant logistically, culturally and personally. To that end the affidavits relate (amongst other matters) the significance of the journey and the country to the deponents. They are all similarly constructed to convey the experiences of the members of the native title claim group who travelled by helicopter, or for a number of days by a convoy of vehicles, to key locations in the claim area to undertake important activities in exercise of their rights and responsibilities to their country. Many of the deponents are elderly, the locations very remote and logistically complex to access, the cultural significance of the journey clearly very important to people.
[41]	If locations are not marked on one map annexed to one affidavit, they are marked on another annexed to another affidavit. Inconsistencies of affirmation or swearing or saying on oath do not in my view, bring into question the truth of the affidavits. Their content and clear intent is consistent. Achieving a legally technical correctness in such circumstances, is not in my view, so paramount and does not compromise the weight to which I will afford their evidence in the context of registration. 
[42]	In any event, each of the persons comprising the applicant have stated on oath that ‘to the best of their knowledge, information and belief all of the statements made in the application are true’—affidavits of Bobby West and Joshua Booth, made pursuant to s 62(1)(a). Finally, I refer also to comments by Mansfield J in Doepel that are in similar ambit:
Nor, in my view, is there merit in the attack upon the Registrar's decision because Bill Harney's affidavit is dated some time before the application was made, and before the notifications given under s 29 of the NT Act referred to in Schedule B to the application. The exigencies of distance and access, as well as the detailed requirements of ss 61 and 62, sometimes mean there will be a delay, perhaps a considerable delay, between the authorisation of applicants to make an application under s 61 and the making of the application. Schedule B is to identify the area over which native title rights and interests are claimed. It does so in part by reference to certain notices given under s 29. It does not follow that the native title claim groups were not aware of the prospect of notices being given in respect of the areas to which they refer prior to the issue of the actual notices, or that the notices do not refer to areas of land over which the native title claim group had previously decided to claim native title rights and interests [emphasis added]— Doepel at [89].
[43]	It is clear to me that each of the deponents knows precisely to what they attest in their affidavit and I do not doubt the veracity of their understanding and the content of their evidence as it pertains to locations and sites within their traditional country. The weight of the applicant’s factual basis for the claim made in the application is contained in the 12 affidavits and they are the primary source on which I rely for my conclusions that I am satisfied that the application meets the requirements of this condition.
[44]	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)
[45]	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].
[46]	Attachment F provides a general description of the native title claim group’s current and previous association with the area covered by this application. That association and connection  is said to be through:
•	 birth or conception of members of the claim group and/or their ancestors, 
•	Tjukurrpa (dreaming) totems and status within the (customary) Law, and
•	personal responsibilities to country—at [44].
[47]	Connection to the area covered by the application is said to be comprised of spiritual, physical, historical, customary, economic and social elements. It is a connection that has continued to exist at all relevant times—at [45]. All the affidavits attached to the application, attest to a strong association to the claim area by members of the native title claim group and to specific areas within the external boundary, predicated on the association of their predecessors with the country covered by the application.
Predecessors
[48]	The association of the predecessors of the native title claim group is premised on the spiritual element of the Tjukurrpa - a characteristic of the wider Western Desert Cultural Bloc (WDCB) society of which the native title claim group is said to be a part. Tjukurrpa is ‘responsible for the existence and form of the landscape, and continues to be a presence or influence in the area, and at places associated with the application area’. It underpins the ceremonial and ritual life of the native title claim group including dictating responsibilities to protect places and beliefs and practices in relation to the area covered by the application—at [46]. Some of the Tjukurrpa stories associated with the area relate to specific features of the landscape, sites and tracks—at [47]. They are integral to the acknowledgement and observance of traditional laws and customs that have been passed onto the members of the claim group by their ancestors and recent predecessors: ‘The Tjukurrpa constitutes a living encompassment linking the past and the present, and human kind and the wider environment’—[58].
[49]	Attachment F refers to the physical element of the native title claim group’s connection to the area covered by the application. For example, senior members ‘were living a wholly traditional lifestyle within the claim area up to and including the 1950s—at [48].
[50]	The twelve affidavits of members of the native title claim group at Attachment E all directly refer to the association of their predecessors with the area covered by the applications. All speak of:
•	stories told by their parents and grandparents of visiting country, looking after and protecting country, walking the country;
•	knowing the area to be their families’ country  - it is their ngurrara, something they know because it has been told to them by their predecessors;
•	their predecessors who were born on the country – in the claim area, in the surrounding desert, around the Canning Stock Route;
•	sites known to them through ‘the old people’ – as places where old people used to walk around, waterholes used by them, grinding stones left by them;
•	protecting, caring and managing the country of the claim area is their responsibility, one passed onto them by their parents and grandparents.
[51]	Of particular significance is the site referred to in many of the affidavits as [Placename] which is located near the centre of the claim area. [Claimant 1] describes the site as a ‘jila’—‘a living water place’ that was a big meeting place for the old people’; an important place during a drought, a place where an important rainmaking ceremony is performed—at [10]. [Claimant 1] says that [Placename] is ‘a central point for the whole Ngurra Kayanta claim area’, that ‘there is strong tjukurrpa’ there and running all through the claim area’—at [11]. [Claimant 2] who was born in the bush close to [Placename] can trace back the birth and association of his parents and grandparents to this site—at [7]. He knows that [Placename] is his country because he walked there with his mother, she taught him about the country so that he knows the stories, the rules and ‘the law for that place’—at [16] to [29]. He speaks about the authority of the old people to burn country, to do the ceremony and to look after the site because they have been taught in the traditional ways by their predecessors and their ancestors.
[52]	The affidavits refer to the practice of ‘burning country’ – something people have been doing ‘since the old people been walking around’ ... knowing ‘how to burn country because we learned from old people. Burning is looking after country’—[Claimant 3] at [14]. The practice of burning is one that only certain men can do and is part of the respect and responsibility for the [Placename] site. Many of the affidavits refer to the presence of grinding stones ‘left by the old people’ ([Claimant 4] at [34]) and other artefacts that remain in the area. Others speak of the old days when people lived on the claim area:
The old people would camp and make sure people know they were coming ... this is how the old people looked after and protected country – know the stories for country, ask permission go onto someone’s ngurra and keep the waterholes clean and the country burnt ... if someone wasn’t to come onto our country they have to ask our permission – like the old days—[Claimant 5] at [13] to [14].
[53]	The association with the claim area and connection with the [Placename] site in particular is clearly rooted in the previous generations of the current members of the claim group and the continuity engendered by the intergenerational transfer of association and knowledge of country.
Current 
[54]	The traditional laws and customs acknowledged and observed by the people of the WDCB, including by the members of the native title claim group, 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 – Attachment F at [59]. Further:
•	knowledge of country is gained through the abiding tjukurppa (the law that binds everything);
•	deponents have the responsibility to ensure the country stays healthy through burning and cleaning out waterholes, controlling access, checking the plants and animals, painting about country;
•	many of the deponents live in the immediate vicinity of the claim area – in the communities of Balgo, Mulan, Kiwirrkurra and Fitzroy Crossing;
•	deponents living north of the claim area access it regularly throughout the year – visiting the now abandoned outstation in its north western reaches, camping, hunting, collecting bush tucker, checking on sites and burning country to ‘keep it strong and healthy’.
[55]	Attachment G (details of activities undertaken by the native title claim group) provides examples of the exercise of the claimed rights and interests. Many of these activities evidence the group’s association with the area covered by the application – accessing, travelling through, moving about and camping, hunting and gathering, lighting fires for cooking and land management, conducting ceremonies and holding meetings, maintaining and protecting sites and places of significance, teaching the physical and spiritual attributes of locations and sites.
[56]	The affidavits of members of the native title claim group describe their experience of travelling to the remote area of the claim and to the [Placename] site. They speak of their knowledge of the stories and songs for the site, the activities they undertake when they visit – ceremony, burning, hunting, painting, clearing waterholes, teaching and showing younger members the rules and responsibilities that must be observed in relation to the area and how to keep the country ‘healthy’.
[57]	[Claimant 6] and [Claimant 7] both attest to their occupation of the reserve that falls in the north of the area covered by the application, particularly in relation to the area of the Jalyirr Outstation. This is [Claimant 6] father’s father’s country for which he now has responsibility – he makes decisions in relation to it, he visits the area, camps on and hunts and gathers bush tucker in the area, he knows the stories for his country and the locations of its important sites. He and others and their families go there regularly from the community at Mulan (to the north of the claim area)—at [1] to [29]. [Claimant 7] regularly takes her family there to camp, hunt and collect bush tucker, to burn the country and teach her children about the places and stories of this area—at [7] to [23].
[58]	Most of the deponents attest to the notion that physical absence from the area does not mean that connection and association is not a strong and continuing presence in their daily lives. [Claimant 5] states that ‘nobody lives in the claim area now, but people still look after that country and visit it … everyone knows where their ngurra is and you have to look after your ngurra – protect it…’—at [9]. Living away from country still means that members of the claim group need to look after it: ‘I am always worrying about that part of my country’—Bobby West at [5]; ‘…I worry about [Placename] and those places I have to look after even when I am not there – it’s always on my mind. I want to know what’s happening there – is the country safe … I am still responsible for that area even when I am not there.’—[Claimant 1] at [15].
Consideration
[59]	I consider that the material in the application is sufficient to demonstrate the association with the area covered by the application of members of the claim group and its predecessors. The extensive personal detail in the affidavits of the members of the native title claim group provides particular evidence to illustrate the claim group’s abiding connection to the land and waters of the application area through birth, descent, long term association and/or ancestral connection to that area. In this way it is clear that this current association has its origins in the preceding generations’ association with the area.
[60]	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)
[61]	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 which give rise to the native title rights and interests it claims.
[62]	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]
[63]	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 accompanying affidavits 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.
[64]	As referred to above in relation to the group’s previous and current association, the native title claim group is said to be part of the larger society of the WDCB—Attachment F [54] to [55]. As members of the WDCB the persons in the native title claim group are governed by:
•	a functioning set of laws, rules, customs, practices and beliefs that allows the members to live their daily lives according to shared physical, social and cultural norms—at [54];
•	the fundamental belief system of the Tjukurrpa providing the moral, social and judicial guidance to everyday life which lays down the rules or principles by which people relate to each other and conduct themselves in relation to the claim area—at [55].
[65]	The traditional laws and customs acknowledged and observed by the people of the WDCB, including the members of the native title claim group, are said to be given normative force by the widespread commitment to the Tjukurrpa and the high value placed upon the sacred and a fear of being ostracised or otherwise punished (including socially and/or physically) for breach of the laws and customs— Attachment F at [57]. Further:
The Tjukurrpa provides a framework for country through dreaming tracks and constellations of sites associated with particular Tjukurrpa shapes the way the native title claim group members (along with other members of the Western Desert Cultural Bloc) see their country, including the application area, and experience and understand their socio-cultural system—at [58].
[66]	Under the traditional laws and customs acknowledged and observed by the native title claim group, the nature and extent of rights and interests exercisable by a person (along with their seniority and authority) in relation to the area is said 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— Attachment F at [60] and [61].
[67]	Attachment F also sets out other elements of the ‘body of traditional laws and customs acknowledged and observed by the people of the WDCB’:
•	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—at [62].
[68]	It is asserted that there is a continuum since sovereignty of the acknowledgement and observance of WDCB traditional laws and customs. That is, since sovereignty the people of the WDCB have been a body of persons united in and by their acknowledgment and observance of laws and customs (subject to regional variations). It is under these laws and customs that the native title claim group possesses its claimed rights and interests and has a connection with the land and waters covered by the application area. Further, at all times since sovereignty that connection has been underpinned by the recognition of and adherence to the Tjukurrpa—at [63] to [67].
[69]	Members of the claim group attest to the Ngurra Kayanta claim area as  being their ngurra – their homeland, their country—the place where my heart and spirit are’—Bobby West at [2]. The affidavits of the members of the native title claim group are replete with examples of the activities they undertake in accordance with their laws and customs on and in relation to the area of the application. For example:
•	[Claimant 1] speaks of the tjukurppa – ‘the law, is what binds everything together – it binds together the social lives of people and the spiritual lives of people and together these things are also bound to the land – Ngurra Kayanta. This link – this binding together – remains strong with the people from that Ngurra Kayanta country even when they go back to their communities and live their everyday lives—at [21];
•	[Claimant 2] sets out the many rules ‘for visiting that [Placename] place’ and the traditional laws and customs acknowledged and observed by senior people in relation to ‘looking after all of Ngurra Kayanta country’—at [17] to [29];
•	[Claimant 5] speaks of the old men and ladies who ‘know all the stories of country and they teach the young people those stories – men side – ladies side. This keeps the tjukurppa strong and this keeps the country strong. If we don’t do that properly – look after country – we may get punished’—at [10];
[70]	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 European contact. The application asserts, and this is illustrated in the 12 affidavits, 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]).
[71]	The personal detail provided in the 12 affidavits supports and illustrates the information at Attachment F and I am satisfied that the factual basis for the claim supports that there exist traditional laws acknowledged and customs observed by the native title claim group and that these give rise to the native title rights and interests it claims.
Reasons for s 190B(5)(c)
[72]	This subsection requires that I be satisfied that there is sufficient factual basis to support the assertion that the native title claim group continues to hold native title in accordance with their traditional laws and customs. In order for a delegate to be satisfied that there is a factual basis for s 190B(5)(c) there must be some material which addresses those matters outlined by Dowsett J in Gudjala 2007 at [63], [65] and [66] (as summarised above).
[73]	Continued acknowledgement and observance of WDCB traditional law and custom has been possible because the members of the claim group and their predecessors have continued to live, occupy and travel through the area covered by the application despite its remoteness. Even when physically absent from the area they continue to practice their traditional laws and customs and adhere to the processes that regulate their association with and responsibilities to their country (including the area of this application). 
[74]	The information summarised in my reasons above for ss 190B(5)(a) and (b) in my view, support the assertion that the native title claim group continues to hold native title in accordance with its traditional laws and customs. Attachment F and the affidavits at Attachment E contain many statements (some of which are summarised above) that assert the continuity of the native title claim group’s traditional laws and customs. Further, all of the affidavits illustrate and, in my view, demonstrate that these laws and customs have been passed from generation to generation by traditional modes of oral transmission, teaching and common practice, and continue to be acknowledged and observed today among the current generations of the claim group.
[75]	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
[76]	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.
[77]	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].
[78]	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. 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.
[79]	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.
[80]	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. Attachment F does refer to the content of this right of exclusive possession as it exists under the native title claim group’s traditional laws and customs, but the majority of the substantive information in support of the claim to this right is provided in the affidavit material.
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.
[81]	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.
[82]	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].
[83]	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].
[84]	The list at Schedule G of activities undertaken by the claim group includes controlling the access and use of the claim area by others. The affidavits support this statement and attest that the native title claim group and its predecessors have continually practiced their rights to exclusively possess the land and waters of the claim area. For example, 
If someone wants to come onto our country they have to ask our permissions – like the old days… they can only come on if they follow the rules – like the old days. This is how we look after and protect country—[Claimant 5] [14].
and
One of the main jobs in looking after country is to protect the country from damage and interference. In the old days, before you went onto someone else’s country you would camp at the boundary and the owners of that country – those people whose ngurra was that country – would come and meet you and invite you in. They would tell you where you could and couldn’t go. This protected the country by making sure strangers didn’t go to places they shouldn’t. Men’s places, women’s places were protected.
Today we still seek permission before we go onto someone else’s country ... The owners of that country will tell you where it’s okay to go.
When other mobs want to come onto Ngurra Kayanta country they need to speak first to the right people and get permission. If people want to go to [Placename] they must come and speak to me and the other people who look after that area. They need to do this even though we don’t live at [Placename] anymore— [Claimant 1] [22] to [24].
[85]	Such rights would appear to be implicit in the connection members of the claim group have to their ngurra – to speak for it, protect it and access it and its resources. Most of the affidavits refer to a responsibility to look after and protect country, that the claim group has the right to take resources from its country and control the access of others and that this has been taught to them by their predecessors. Some of the affidavits also refer to the ‘trouble’ people might get into, or the sanctions that might be enforced against them, if the access and permission obligations are ignored. 
[86]	In my view, the right to exclusive possession is evidenced in the material before me such that I consider that it can be established, prima facie.
Conclusion
[87]	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.
[88]	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].
[89]	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].
[90]	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 members of the claim group continue to visit many areas within the area covered by the application and to carry out various traditional activities associated with ‘looking after country’ and in exercise of their claimed native title rights and interests.
[91]	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
[92]	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.

[93]	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)
[94]	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 July 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)
[95]	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) provides 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)
[96]	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
[97]	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.
[98]	I consider each of the subconditions of s 190B(9) in my reasons below.
Section 190B(9)(a)
[99]	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)
[100]	Schedule P provides the statement that no offshore places comprise any part of the area covered by the application.
Section 190B(9)(c)
[101]	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
[102]	In my view the application does not offend any of the provisions of ss 190B(9)(a), (b) and (c) and therefore the application meets the condition of s 190B(9)

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. 
[103]	The application satisfies the condition of s 190C(2), because it does contain all of the details and other information and documents required by ss 61 and 62, as set out in the reasons below. 
[104]	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’. In reaching my decision for the condition in s 190C(2), I understand that this condition is procedural only and simply requires me to be satisfied that the application contains the information and details, and is accompanied by the documents, prescribed by ss 61 and 62. This condition does not require me to undertake any merit or qualitative assessment of the material for the purposes of s 190C(2)— Doepel at [16] and also at [35] to [39]. In other words, does the application contain the prescribed details and other information? 
[105]	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)
[106]	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 requires 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].
[107]	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.
[108]	The application contains all details and other information required by s 61(1). 
Name and address for service: s 61(3)
[109]	Part B of the application states on page 14 the name and address for service of the persons who are the applicant.
[110]	The application contains all details and other information required by s 61(3). 
Native title claim group named/described: s 61(4)
[111]	Schedule A refers to Attachment A which provides a description of the persons who comprise the native title claim group.
[112]	The application contains all details and other information required by s 61(4).
Affidavits in prescribed form: s 62(1)(a)
[113]	Each of the 2 persons who comprise the applicant have signed an affidavit swearing or affirming, in full, to all the statements required of this section.
[114]	The application is accompanied by the affidavit required by s 62(1)(a).
Details required by s 62(1)(b)
[115]	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)
[116]	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)
[117]	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)
[118]	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)
[119]	Schedule E provides a description of the native title rights and interests claimed in relation to the area covered by the application, referring also to the 12 affidavits of members of the native title claim group for further information.
Description of factual basis: s 62(2)(e)
[120]	Schedule F refers to Attachment F which provides information in support of the factual basis for the claim made in the application.
Activities: s 62(2)(f)
[121]	Schedule G refers to Attachments G and F 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)
[122]	Schedule H provides the statement the applicant is aware that the area covered by the application is also covered by the application in WAD410/2012, the first Ngurra Kayanta claim as filed in 2012.
Section 24MD(6B)(c) notices: s 62(2)(ga)
[123]	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)
[124]	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
[125]	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.
[126]	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 ‘previous application’ that is an overlapping registered application when the current application was made in the Court.
[127]	Schedule H (Details of any other applications) identifies the Ngurra Kayanta native title determination application (WAD410/2012) as having been made in relation to the area covered by the current application. Contrary to this, Schedule O (Membership of any other native title groups) states that there are no other applications in relation to the whole or part of the application area. This is clearly a drafting error.
[128]	The State government submits that recognition of the existence of the underlying Ngurra Kayanta application and the common group membership between the Ngurra Kayanta and Ngurra Kayanta 2 applications is apparent in the information in the affidavits at Attachment E. I agree.
[129]	The Tribunal’s geospatial report confirms that the area covered by the application is also wholly covered by the Ngurra Kayanta application. This application was accepted for registration on 21 February 2013 and entered on that day onto the Register of Native Title Claims (the Register). It was therefore on the Register at the time the Ngurra Kayanta 2 application was made when it was filed in the Court on 30 June 2015. As the Ngurra Kayanta application is a previous application in the sense discussed in s 190C(3)(a)—(c), I must be consider whether there are common claim group members between the previous Ngurra Kayanta application and the current Ngurra Kayanta 2 application.
[130]	As the native title claim group for both applications is one and the same, it is clear, in the language of this condition, that all the persons in the native title claim group for the current application (Ngurra Kayanta 2) are members of the native title claim group for the previous application (Ngurra Kayanta).
[131]	The application does not satisfy 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
[132]	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). This 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].
Identification of the representative body 
[133]	The Tribunal’s geospatial report of 13 July 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.
[134]	The certificate states that the statements and reasons that follow are made pursuant to s 203FEA(1), that CDNTS is funded to perform all the functions of a representative body pursuant to s 203FE(1)—at [1]. The certificate is dated 11 June 2015 and is signed by the Chief Executive Officer for CDNTS.
Does the certificate meet the requirements of 203BE
[135]	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 Bobby West and Joshua Booth (collectively, the applicant) to file the Ngurra Kayanta 2 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].
[136]	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 arising from 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 traditional decision-making processes.
[137]	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.
[138]	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. The certificate states that a response to this condition is not applicable. In my view, given the only overlapping application is the first Ngurra Kayanta application (WAD410/2015), there is no requirement for the certificate to address this provision.
[139]	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 and that it complies with requirements of s 190C(4)(a).

[End of reasons]

Summary of registration test result
Application name	Ngurra Kayanta 2	
NNTT file no.	WC2015/003	
Federal Court of Australia file no.	WAD326/2015	
Date of registration test decision	September 2015	

Section 190C conditions
Test condition	Subcondition/requirement	Result	
s 190C(2) 		Aggregate result:
met	
	re s 61(1)	met	
	re s 61(3)	met	
	re s 61(4)	met	
	re s 62(1)(a)	met	
	re s 62(1)(b)	met	
s 190C(3)		Not met	
s 190C(4)	re s 190C(4)(a)	met	

Section 190B conditions
Test condition	Subcondition/requirement	Result	
s 190B(2)		met	
s 190B(3)	re s 190B(3)(b)	met	
s 190B(4)		met	
s 190B(5)		met	
s 190B(6)		met	
s 190B(7)(a) or (b)		met	
s 190B(8)		met	
s 190B(9)		met	

[End of document]