Registration test decision

Application name	Mardigan People	
Name of applicant	Dorothy ‘Cindy’ Anderson, Janelle Collins, Rhonda Collins, Jean Colliss, Daphne Jackson, Brian Shillingsworth	
NNTT file no.	QC2007/001	
Federal Court of Australia file no.	QUD26/2007	
Date application made	17 January 2007	
Date application last amended	25 July 2016	
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 C are met. I accept this claim for registration pursuant to s 190A of the Native Title Act 1993 (Cth).
	Date of decision:	11 October 2016	
___________________________________
Radhika Prasad
Delegate of the Native Title Registrar pursuant to sections 190, 190A, 190B, 190C, 190D of the Native Title Act 1993 (Cth) under an instrument of delegation dated 20 November 2015 and made pursuant to s 99 of the Act.

Reasons for decision
Introduction
[1]	This document sets out my reasons, as the delegate of the Native Title Registrar (Registrar), for the decision to accept the amended native title determination application made on behalf of the Mardigan People (the application) for registration pursuant to s 190A of the Act. 
[2]	Note: All references in these reasons to legislative sections refer to the Native Title Act 1993 (Cth) which I shall call ‘the Act’, as in force on the day this decision is made, unless otherwise specified. Please refer to the Act for the exact wording of each condition. 
Application overview 
[3]	The application was originally made on 17 January 2007 when it was filed in the Federal Court of Australia (the Court). A delegate of the Registrar accepted the original application for registration because the application satisfied all of the conditions set out in ss 190B and 190C. 
[4]	On 21 July 2016, Reeves J granted leave to amend the application.
[5]	On 25 July 2016, the application was filed with the Court. The amendments to the application include the following:
•	the persons who comprise the applicant have been altered;
•	the details of the authorisation meeting have been altered in Item 2 (Authorisation), Part A of the Form 1;
•	Schedule A has been changed to revise the list of apical ancestors;
•	Schedules B and C have not been amended but refer to Attachments B and C which have been updated to provide clarity;
•	the text in Schedules H and HA have been amended; 
•	Schedule I has been amended to reflect the most recent notifications;
•	Schedule S has been changed to reflect the most current amendments; 
•	Part B has been amended to reflect changes to the applicant’s address for service; 
•	Attachment F&M has been updated to include recent examples of claimants exercising rights and interests on Mardigan country; and
•	Attachment R is a new certification by Queensland South Native Title Services Limited (QSNTS).
[6]	On 26 July 2016, the Registrar of the Court gave a copy of this application to the Registrar pursuant to s 64(4) of the Act. This has triggered the Registrar’s duty to consider the claim made in the application under s 190A of the Act.

Requirements of s 190A
[7]	My consideration of the application is governed by s 190A of the Act. Section 190A(6) requires the Registrar to consider whether a claim for native title satisfies the conditions in ss 190B and 190C, known as the registration test. The test is triggered when a new claim is referred to the Registrar under s 63 or in some instances when a claim in an amended application is referred under s 64(4). The test will not be triggered when an amended application satisfies the conditions of ss 190A(1A) or (6A). For the following reasons, I am satisfied that neither subsection 190A(1A) nor subsection 190A(6A) apply to this claim:
•	subsection 190A(1A) does not apply as the application was not amended because an order was made under s 87A by the Court; and
•	subsection 190A(6A) does not apply because the effect of the amendments to the native title determination application, which includes a change to the composition of the native title claim group and certification of the application, falls outside the exceptions to undertaking a full registration test set out in subparagraphs 190A(6A)(d)(i) to (v).
[8]	I must therefore apply the registration test to this amended application. In accordance with s 190A(6), I must accept the claim for registration if it satisfies all of the conditions in ss 190B and 190C of the Act. If those conditions are not satisfied then, under s 190A(6B), I must not accept the claim for registration.
[9]	Section 190B sets out conditions that test particular merits of the claim for native title. Section 190C sets out conditions about ‘procedural and other matters’. Included among the procedural conditions is a requirement that the application must contain certain specified information and documents. In my reasons below, I consider the requirements of s 190C first, in order to assess whether the application contains the information and documents required by s 190C before turning to questions regarding the merit of that material for the purposes of s 190B.
[10]	As discussed in my reasons below, I consider that the claim in the application does satisfy all of the conditions in ss 190B and 190C and therefore, pursuant to s 190A(6), it must be accepted for registration. Attachment A contains information that will be included in the Register of Native Title Claims (the Register).
Information considered when making the decision
[11]	Subsection 190A(3) directs me to have regard to certain information when testing an application for registration. I understand this provision to stipulate that the application and information in any other document provided by the applicant is the primary source of information for the decision I make. Accordingly, I have taken into account the following material in coming to my decision:
•	the information contained in the amended application and accompanying documents;
•	the Geospatial Assessment and Overlap Analysis (GeoTrack: 2016/1196) prepared by the Tribunal’s Geospatial Services on 9 August 2016 (the geospatial assessment); and
•	the results of my own searches using the Tribunal’s registers and mapping database. 
[12]	I have not considered any information that may have been provided to the Tribunal in the course of the Tribunal providing assistance under ss 24BF, 24CF, 24CI, 24DG, 24DJ, 31, 44B, 44F, 86F or 203BK of the Act. Also, I have not considered any information that may have been provided to the Tribunal in the course of mediation in relation to this or any claimant application.  
Procedural fairness steps
[13]	As a delegate of the Registrar and as a Commonwealth Officer, when I make my decision about whether or not to accept this application for registration I am bound by the principles of administrative law, including the rules of procedural fairness. Those rules seek to ensure that decisions are made in a fair, just and unbiased way. I note that the common law duty to afford procedural fairness may be excluded by express terms of the statute under which the administrative decision is made or by any necessary implication — Hazelbane v Doepel [2008] FCA 290 at [23] to [31]. The steps that I and other officers of the Tribunal have undertaken to ensure procedural fairness is observed, are as follows:
•	On 19 August 2016, the practice leader for this matter sent a letter to the applicant and the State of Queensland (the State) enclosing a copy of the Extract from Schedule of Native Title Applications which shows details of the application as amended. That letter informed the State that any submission in relation to the registration of this claim should be provided by 2 September 2016. The State has not provided any submissions.

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. 
[14]	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. 
[15]	I note that I am considering this claim against the requirements of s 62 as it stood prior to the commencement of the Native Title Amendment (Technical Amendments) Act 2007 on 1 September 2007. This legislation made some minor technical amendments to s 62 which only apply to claims made from the date of commencement of the Act on 1 September 2007 onwards, and the claim before me is not such a claim. 
[16]	I understand that the condition in s 190C(2) 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 go beyond the information in the application itself nor undertake any merit or qualitative assessment of the material for the purposes of s 190C(2) — see observations of Mansfield J in Northern Territory v Doepel (2003) 133 FCR 112; [2003] FCA 1384 (Doepel) at [37] and [39]; see also [16], [35] and [36]. Accordingly, the application must contain the prescribed details and other information in order to satisfy the requirements of s 190C(2). 
[17]	It is also my view that I need only consider those parts of ss 61 and 62 which impose requirements relating to the application containing certain details and information or being accompanied by any affidavit or other document (as specified in s 190C(2)). I therefore do not consider the requirements of s 61(2), as it imposes no obligations of this nature in relation to the application. I am also of the view that I do not need to consider the requirements of s 61(5). The matters in ss 61(5)(a), (b) and (d) relating to the Court’s prescribed form, filing in the Court and payment of fees, in my view, are matters for the Court. I do not consider they require any separate consideration by the Registrar. Paragraph 61(5)(c), which requires the application contain such information as is prescribed, does not need to be considered by me separately under s 190C(2), as I already test these under s 190C(2) where required by those parts of ss 61 and 62 which actually identify the details/other information that must be in the application and the accompanying prescribed affidavit/documents.
[18]	I now turn to each of the particular parts of ss 61 and 62:
Native title claim group: s 61(1)
[19]	Schedule A of the application provides a description of the native title claim group, an extract of which can be seen in my reasons below at s 190B(3). The application indicates that the persons comprising the applicant are included in the native title claim group — see s 62(1)(a) affidavits of the persons comprising the applicant at [1]. There is nothing on the face of the application that causes me to conclude that the requirements of this provision, under s 190C(2), have not been met.
[20]	The application contains all details and other information required by s 61(1). 
Name and address for service: s 61(3)
[21]	Part B of the application contains the name and address for service of the applicant’s representative. 
[22]	The application contains all details and other information required by s 61(3).  
Native title claim group named/described: s 61(4)
[23]	I consider that Schedule A of the application contains a description of the persons in the native title claim group that appears to meet the requirements of the Act. 
[24]	The application contains all details and other information required by s 61(4).
Affidavits in prescribed form: s 62(1)(a)
[25]	The application is accompanied by affidavits sworn by each of the persons who comprise the applicant. The affidavits are identical and contain the statements required by s 62(1)(a)(i) to (v), including stating the basis on which the applicant is authorised as mentioned in subsection (iv) — at [2] – [10].
[26]	The application is accompanied by the affidavit required by s 62(1)(a).
Details required by s 62(1)(b)
[27]	Subsection 62(2)(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)
[28]	Attachment B contains information that allows for the identification of the boundaries of the area covered by the application. Schedule B contains information of areas within those boundaries that are not covered by the application.
Map of external boundaries of the area: s 62(2)(b)
[29]	Attachment C contains a map showing the external boundary of the application area.
Searches: s 62(2)(c)
[30]	Schedule D provides that no searches have been carried out by the current applicant to determine the existence of non-native title rights and interests.
Description of native title rights and interests: s 62(2)(d)
[31]	A description of the native title rights and interests claimed by the native title claim group in relation to the land and waters of the application area appears at Schedule E. The description does not consist only of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law.
Description of factual basis: s 62(2)(e)
[32]	Attachment F&M contains information pertaining to the factual basis on which it is asserted that the rights and interests claimed exist. I note that there may also be other information within the application that is relevant to the factual basis.
Activities: s 62(2)(f)
[33]	Schedule G contains a list of the activities currently undertaken by members of the claim group on the land and waters of the application area.
Other applications: s 62(2)(g)
[34]	Schedule H provides that the area covered by the application is not covered by another application. 
Section 29 notices: s 62(2)(h)
[35]	Schedule I contains details of four notices issued under s 29 of which the applicant is aware.
Conclusion
[36]	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.
[37]	In my view, the requirement that the Registrar be satisfied that there are no common claimants arises where there is a previous application which comes within the terms of subsections (a) to (c) — State of Western Australia v Strickland [2000] FCA 652 (Strickland FC) at [9]. 
[38]	I note that the text of this provision reads in the past tense, however I consider the proper approach would be to interpret s 190C(3) in the present tense as to do otherwise would be contrary to its purpose. The explanatory memorandum that accompanied the Native Title Amendment Bill 1997 relevantly provides that:
	29.25	The Registrar must be satisfied that no member of the claim group for the application … is a member of the claim group for a registered claim which was made before the claim under consideration, which is overlapped by the claim under consideration and which itself has passed the registration test [emphasis added].
	…
	35.38	The Bill generally discourages overlapping claims by members of the same native title claim group, and encourages consolidation of such multiple claims into one application.
[39]	I understand from the above that s 190C(3) was enacted to prevent overlapping claims by members of the same native title claim group from being on the Register at the same time. That purpose is achieved by preventing a claim from being registered where it has members in common with an overlapping claim that is on the Register when the registration test is applied. I consider that this approach, rather than a literal approach, more accurately reflects the intention of the legislature. 
[40]	I also note that in assessing this requirement, I am able to address information which does not form part of the application — Doepel at [16]. 
[41]	The geospatial assessment does not identify a previous application that covered the whole or part of the area covered by the current application. I have also undertaken a search of the Tribunal’s mapping database and am of the view that there is no previous application that covered the whole or part of the area covered by the current application. 
[42]	I am therefore satisfied that there is no previous application to which ss 190C(3)(a) to (c) apply. Accordingly, I do not need to consider the requirements of s 190C(3) further.
[43]	The application satisfies the condition of s 190C(3).
Subsection 190C(4)
Authorisation/certification
Under s 190C(4) the Registrar/delegate must be satisfied that either:
(a)	the application has been certified under Part 11 by each representative Aboriginal/Torres Strait Islander body that could certify the application, or
(b)	the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group.
Note: The word authorise is defined in section 251B.
Under s 190C(4A), the certification of an application under Part 11 by a representative Aboriginal/Torres Strait Islander body is not affected where, after certification, the recognition of the body as the representative Aboriginal/Torres Strait Islander body for the area concerned is withdrawn or otherwise ceases to have effect.
[44]	I must be satisfied that the requirements set out in either ss 190C(4)(a) or (b) are met, in order for the condition of s 190C(4) to be satisfied. 
[45]	Schedule R indicates that a copy of the certificate of the representative Aboriginal body accompanies the application at Attachment R. Accordingly, I am of the view that it is necessary to consider whether the requirements of s 190C(4)(a) are met.  
The nature of the task at s 190C(4)(a)
[46]	Section 190C(4)(a) imposes upon the Registrar conditions which, according to Mansfield J, are straightforward — Doepel at [72]. His Honour noted that the Registrar is to be ‘satisfied about the fact of certification by an appropriate representative body’, but is not to ‘go beyond that point’ and ‘revisit the certification of the representative body’ — at [78], [80] and [81]; see also Wakaman People #2 v Native Title Registrar [2006] FCA 1198 at [32]. I therefore consider that my task here is to identify the appropriate representative body and be satisfied that the application is certified under s 203BE.
[47]	Once satisfied that the requirements of s 190C(4)(a) have been met, I am not required to ‘address the condition imposed by s 190C(4)(b)’ — Doepel at [80].
Identification of the representative body and its power to certify
[48]	Attachment R is titled ‘Certification of Native Title Determination Application — Mardigan People QUD26/2007’ (certification). It is dated 22 June 2016 and signed by the Chief Executive Officer of QSNTS. 
[49]	The certificate states that QSNTS is a body funded under s 203FE(1) of the Act for the purpose of performing the functions of a representative body. The certificate also provides that the application has been certified pursuant to ss 203BE and 203FEA of the Act — see note to s 190C(4)(a) which allows an application to be certified under s 203BE. 
[50]	If a body is funded under s 203FE(1) to perform the functions, including the certification in s 203BE of a representative body over an area, then that body will have the power to certify an application under Part 11.
[51]	The geospatial assessment identifies QSNTS to be the only representative body for the area covered by the application. 
[52]	Having regard to the above information, I am satisfied that QSNTS was the relevant s 203FE funded body for the application area and that it was within its power to issue the certification.
The requirements of s 203BE
[53]	As mentioned above, I consider that I am only required to be satisfied of ‘the fact of certification’ and am not permitted ‘to consider the correctness of the certification by the representative body’ — Doepel at [78] and [82]. 
[54]	Accordingly, I must consider whether the certification meets the requirements of s 203BE, the relevant subsection being (4). 
Subsection 203BE(4)(a)
[55]	This provision requires a statement from the representative body confirming that they hold the opinion that the conditions at subsections (2)(a) and (2)(b) have been met. 
[56]	Subsection 203BE(2) sets out that a representative body must not certify an application for a determination of native title unless it is of the opinion that:
(a)	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
(b)	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.
[57]	The certification contains the statement required by s 203BE(4)(a) — at [2] and [3].
Subsection 203BE(4)(b)
[58]	Pursuant to s 203BE(4)(b), the certification must also briefly set out the body’s reasons for making the required statements under s 203BE(4)(a). 
[59]	In that regard, the certification sets out details pertaining to the authorisation of the applicant, including that: 
•	The authorisation meeting was extensively advertised with notices placed in the Brisbane Courier Mail on 16 April 2016, the Koori Mail on 20 April 2016, and the Warrego Watchman on 21 April 2016.
•	Members of the Mardigan People were sent letters and contacted by telephone by QSNTS.
•	An information session was held on 14 May 2016 at Cunnamulla, which was notified by the advertisements, letters and telephone contact referred to above. Those in attendance were again informed of the authorisation meeting later that day.
•	The authorisation meeting held in Cunnamulla on 14 May 2016 was well attended. Attendance records, meeting procedures and outcomes were taken and kept by QSNTS staff who attended the meeting.
•	QSNTS is of the opinion that through the holding of the authorisation meeting all necessary steps and processes have been followed in accordance with the requirements of the Act and the instructions of the native title claim group. 
•	QSNTS is satisfied that all 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 that 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 — at [4].
[60]	I am of the opinion that the certificate meets the requirement of s 203BE(4)(b).
Subsection 203BE(4)(c)
[61]	This subsection applies where the application area is covered by an overlapping application for determination of native title. 
[62]	I do not consider that any application currently overlaps the application area — see my reasons at s 190C(3). Accordingly, in my view, the requirements of s 203BE(3) are not applicable to the area covered by this application.
[63]	I am of the view that the requirements of s 203BE(4) of the Act have been satisfied and therefore find that the criteria under s 190C(4)(a) have been met.
[64]	The application satisfies the condition of s 190C(4).

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.
[65]	Attachment B is a written description prepared by QSNTS’ geospatial services on 21 June 2016 and contains a metes and bounds description of the external boundaries of the application area, referencing rivers, creeks, native title determination applications, cadastral boundaries and geographic coordinates. Schedule B lists general exclusions.
[66]	Attachment C is a colour copy of a map titled ‘QUD26/2007 – Mardigan People’ prepared by QSNTS on 31 May 2016. The map includes:
•	the application area depicted by a bold outline;
•	topographic background;
•	scalebar, northpoint, commencement point and legend; and
•	notes relating to the source, currency and datum of data used to prepare the map.
Consideration 
[67]	The geospatial assessment states that the area covered by the application has not been amended and concludes that the description and map of the application area are consistent and identify the application area with reasonable certainty. I agree with this assessment.
[68]	In light of the above information, I am satisfied that the description and the map of the application area, as required by ss 62(2)(a) and (b), are sufficient for it to be said with reasonable certainty that the native title rights and interests are claimed in relation to particular land or waters.
[69]	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.
[70]	Schedule A contains the following description of the native title claim group:
The native title claim group (hereafter the ‘claim group’) on whose behalf the claim is made is the Mardigan People.
The Mardigan People are the biological descendants of the following persons:
Charlie Zouch	Judie and Tinker Wells	
Mother of Fred Collins, Jesse Dixon, Jack Dixon, Nancy Colin and Tom Napoleon	Paddy Murphy	
Charlotte Wandilla	Tommy Conbar	
Mary Darrie	Henry 'Goodyenee' Tilbooroo	
Henry Clive (also known as Harry Clive)	Nellie Ardock	
Mary Rebel		
[71]	It follows from the description above that the condition of s 190B(3)(b) is applicable to this assessment. Thus, I am required to be satisfied that the persons in the native title claim group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group.
Nature of the task at s 190B(3)(b)
[72]	When assessing the requirements of this provision, I understand that I must determine whether the material contained in the application ‘enables the reliable identification of persons in the native title claim group’ — Doepel at [51]. 
[73]	In Gudjala People #2 v Native Title Registrar [2007] FCA 1167 (Gudjala 2007), Dowsett J commented that s 190B(3) ‘requires only that the members of the claim group be identified, not that there be a cogent explanation of the basis upon which they qualify for such identification’ — at [33]. His Honour expressed the view that where a claim group description contained a number of paragraphs, ‘consistent with traditional canons of construction’, the paragraphs should be read ‘as part of one discrete passage, and in such a way as to secure consistency between them, if such an approach is reasonably open’ — at [34]. His Honour also confirmed that s 190B(3) required the Registrar to address only the content of the application — at [30].
[74]	In Western Australia v Native Title Registrar (1999) 95 FCR 93; [1999] FCA 1591 (WA v NTR), Carr J commented that to determine whether the conditions (or rules) specified in the application has a sufficiently clear description of the native title claim group:
[i]t may be necessary, on occasions, to engage in some factual inquiry when ascertaining whether any particular person is in the group as described. But that does not mean that the group has not been described sufficiently. It is more likely to result from the effects of the passage of time and the movement of people from one place to another. The Act is clearly remedial in character and should be construed beneficially — at [67]. 
Consideration
[75]	I understand that the native title claim group includes those persons who are the biological descendants of the identified apical ancestors. Describing a claim group in this manner is one method that has been accepted by the Court as satisfying the requirements of s 190B(3)(b) — see WA v NTR at [67]. 
[76]	I consider that requiring a member to show biological descent from an ancestor identified in Schedule A provides a clear starting or external reference point to commence an inquiry about whether a person is a member of the native title claim group.
[77]	In my view, as indicated by the factual basis contained in Attachment F&M, descent from a named ancestor provides the fundamental basis for membership to the Mardigan People native title claim group — see Attachment F&M at 1 – 2 and 17. I am of the view that with some factual inquiry it will be possible to identify the persons who fit the description of the native title claim group.
Conclusion 
[78]	In my view, the description of the native title claim group contained in the application is such that, on a practical level, it can be ascertained whether any particular person is a member of the group.  Accordingly, focusing only upon the adequacy of the description of the native title claim group, I am satisfied of its sufficiency for the purpose of s 190B(3)(b).
[79]	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.
[80]	The task at s 190B(4) is to assess whether the description of the native title rights and interests claimed is sufficient to allow the rights and interests to be readily identified. In my opinion, that description must be understandable and have meaning — Doepel at [91], [92], [95], [98] to [101] and [123]. I understand that in order to assess the requirements of this provision, I am confined to the material contained in the application itself — at [16].
[81]	I note that the description referred to in s 190B(4), and as required by s 62(2)(d) to be contained in the application, is:
a description of the native title rights and interests claimed in relation to particular land or waters (including any activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law …
[82]	I will consider whether the claimed rights and interests can be prima facie established as native title rights and interests, as defined in s 223, when considering the claim under s 190B(6) of the Act. For the purposes of s 190B(4), I will focus only on whether the rights and interests as claimed are ‘readily identifiable’. Whilst undertaking this task, I consider that a description of a native title right and interest that is broadly asserted ‘does not mean that the rights broadly described cannot readily be identified within the meaning of s 190B(4)’ — Strickland at [60]; see also Strickland FC at [80] to [87], where the Full Court cited the observations of French J in Strickland with approval.
[83]	Schedule E provides the following description of the claimed native title rights and interests:
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 or where s238, ss47, 47A or 47B apply), the Mardigan People claim the right to possess, occupy, use and enjoy the lands and waters of the application area as against the whole world, pursuant to the traditional laws and customs of the claim group.
2.	Over areas where a claim to exclusive possession cannot be recognised, the Mardigan People claim the following rights and interests:
(a)	the right to access the application area;
(b)	the right to camp on the application area;
(c)	the right to erect shelters on the application area;
(d)	the right to exist on the application area;
(e)	the right to move about the application area;
(f)	the right to hold meetings on the application area;
(g)	the right to hunt on the application area;
(h)	the right to fish on the application area;
(i)	the right to use the natural water resources of the application area including the beds and banks of watercourses;
(j)	the right to gather the natural products of the application area (including food, medicinal plants, timber, stone, ochre and resin) according to traditional laws and customs;
(k)	the right to conduct ceremony on the application area;
(l)	the right to participate in cultural activities on the application area;
(m)	the right to maintain places of importance under traditional laws, customs and practices in the application area;
(n)	the right to protect places of importance under traditional laws, customs and practices in the application area;
(o)	the right to conduct burials on the application area;
(p)	the right to speak for and make non-exclusive decisions about the application area;
(q)	the right to cultivate and harvest native flora according to traditional laws and customs
3.	The native title rights and interests are subject to:
(a)	The valid laws of the State of Queensland and the Commonwealth of Australia; and
(b)	The rights conferred under those laws.
Consideration
[84]	For the purposes of s 190B(4), I am satisfied that the rights and interests identified are understandable and have meaning.
[85]	I find that the description of the native title rights and interests claimed is sufficient to allow the rights and interests to be readily identified and that therefore the application satisfies the condition of s 190B(4).
[86]	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.
[87]	I consider each of the three assertions set out in the three paragraphs of s 190B(5) in turn in my reasons below.
The requirements of s 190B(5) generally
[88]	Whilst assessing the requirements of this provision, I understand that I must treat the asserted facts as true and consider whether those facts can support the existence of the native title rights and interests that have been identified — Doepel at [17] and Gudjala People #2 v Native Title Registrar [2008] FCAFC 157 (Gudjala FC) at [57], [83] and [91].
[89]	Although the facts asserted are not required to be proven by the applicant, I consider the factual basis must provide sufficient detail to enable a ‘genuine assessment’ of whether the particularised assertions outlined in subsections (a), (b) and (c) are supported by the claimant’s factual basis material — see Gudjala FC at [92].
[90]	I also understand that the applicant’s material must be ‘more than assertions at a high level of generality’ and must not merely restate or be an alternate way of expressing the claim — Gudjala People #2 v Native Title Registrar [2009] FCA 1572 (Gudjala 2009) at [28] and [29] and Anderson on behalf of the Numbahjing Clan within the Bundjalung Nation v Registrar of the National Native Title Tribunal [2012] FCA 1215 at [43] and [48]. 
[91]	I am therefore of the opinion that the test at s 190B(5) requires adequate specificity of particular and relevant facts within the claimants’ factual basis material going to each of the assertions before the Registrar can be satisfied of its sufficiency for the purpose of s 190B(5). 
[92]	The factual basis material is contained in Attachments F&M and M. I proceed with my assessment of the sufficiency of this material by addressing each assertion set out in s 190B(5) below.
Reasons for s 190B(5)(a)
The requirements of s 190B(5)(a)
[93]	I understand that s 190B(5)(a) requires sufficient factual material to support the assertion:
•	that there is ‘an association between the whole group and the area’, although not ‘all members must have such association at all times’ — Gudjala 2007 at [52];
•	that the predecessors of the group were associated with the area over the period since sovereignty — at [52]; and
•	that there is an association with the entire claim area, rather than an association with part of it or ‘very broad statements’, which for instance have no ‘geographical particularity’ — Martin v Native Title Registrar [2001] FCA 16 (Martin) at [26]; see also Corunna v Native Title Registrar [2013] FCA 372 at [39] and [45] where Siopis J cited the observations of French J in Martin with approval.
Information provided in support of the assertion at s 190B(5)(a)
[94]	The factual basis contains the following relevant information about the native title claim group’s association, and that of their predecessors, with the application area:
•	The application area is situated in and around Quilpie with the Bulloo and Paroo Rivers flowing through its borders.
•	Sustained European settlement occurred during the 1860s — Attachment F&M at 1. 
•	Anthropological research shows Aboriginal occupation proximate to the eastern boundary of the application area for at least 14,000 years. Archaeological remains within the application area indicate that the predecessors used stone flakes and grind stones and they would scarred trees. 
•	Early explorers noted an Aboriginal presence in the area including a number of camps within/near the eastern/southeastern region in 1860 — at 1 and 6. The predecessors were also seen camped at a waterhole near the western boundary — at 1. 
•	In the 1860s, stations were established within the application area, including within the northern, middle and southern regions, and the predecessors were residents at camps there — at 1 – 2 and 5. In the 1880s, there was a large camp within the northwestern region which included the claim group predecessors — at 2 and 5.
•	Throughout this period, the predecessors worked on the stations within the application area, including apical ancestors Fred Collins at a station proximate to the southeastern region and Paddy Murphy at a station within the southern region. The predecessors resided, worked at stations, and travelled in and around traditional Mardigan country — at 2.
•	The descendants of the predecessors continued to work at the stations and many stayed within the central region — at 6.
•	Current claim group members continue to reside and/or work on country — at 2. They also continue to visit family residing on country — at 2. Descendants of Nancy Colin, Paddy Murphy and Charlotte Wandilla live and work within the central region. One claimant says he lives in the central region and travels to other places on Mardigan country to fish, hunt and camp. 
•	The Mardigan people continue to follow a landholding system which dictates the extent of land rights in the application area and regulates the use of this land defining areas that can be used such as for camping, hunting, fishing and gathering natural resources, and those areas that must be respected and avoided — at 4.
•	The members of the native title claim group continue to access and have knowledge of Mardigan country and they continue to pass on traditional laws and customs to the younger generations. A descendant of Nancy Colin passes on her knowledge to her son and grandson by teaching them oral tradition and travelling on Mardigan country and showing them places of importance, including a ‘big old camp’ in the southeastern region — at 3. The claim members have knowledge of restricted sites of significance including cave sites and a gender specific site near the southeastern region — at 4. 
•	The members of the claim group have knowledge of and continue to visit the burial grounds within the application area including in the mid-western region. They speak of maintaining burial sites and another claimant speaks of preserving fish traps within the mid-western region, which were an important part of their ancestors’ life and food source – at 3 – 4. 
•	The claimants regularly use a waterhole proximate to the southern boundary, where they camp, fish, dig yams and pick wild fruit — at 4. One claimant says that he was shown where all the rock holes and native wells were located and how to maintain them. He has passed this knowledge on to his children and grandchildren.
•	Current claimants who live on or near Mardigan country frequently hunt, fish, and camp at places within the claim area that their elders took them to. Today they take their own children and grandchildren to these places. One claimant speaks of fishing at a river within the western region with his mother and grandmother while he was growing up — at 2. He now takes his children and grandchildren there and teaches them what he learned from his elders. Another claimant says that he goes camping and fishing within and proximate to the southern, western and eastern regions — at 7. 
Consideration
[95]	In Gudjala 2007, Dowsett J noted the necessity for the Registrar ‘to address the relationship which all members claim to have in common in connection with the relevant land’ — at [40]. In my view, this criterion should be considered in conjunction with his Honour’s statement that the ‘alleged facts support the claim that the identified claim group (and not some other group) held the identified rights and interests (and not some other rights and interests)’ — at [39]. I consider that these principles are relevant in assessing the sufficiency of the claimant’s factual basis for the purpose of the assertion at s 190B(5)(a) as they elicit the need for the factual basis material to provide information pertaining to the identity of the native title claim group, the predecessors of the group and the nature of the association with the area covered by the application. In that regard, I consider that the factual basis material clearly identifies the native title claim group and acknowledges the relationship the Mardigan People have with their country. The factual basis reflects the knowledge claim group members have of traditional Mardigan land and waters including restricted places and burial sites. 
[96]	There is also, in my view, a factual basis that goes to showing the history of the association that members of the claim group have, and that their predecessors had, with the application area — see Gudjala 2007 at [51]. The factual basis contains references to the presence of the predecessors of the apical ancestors within the application area prior to the date of sustained European settlement, which I understand from the factual basis to have occurred around the 1860s. For instance, apical ancestors Fred Collins and Paddy Murphy were working at stations within the application area in the late 1800s and therefore I infer they were, or their immediate predecessors were, associated with the application area prior to sustained European settlement. There are also references to the descendants of the apical ancestors being present on the application area and surrounding areas. Descendants of Nancy Colin, Paddy Murphy and Charlotte Wandilla continue to live and work within the application area. Current claimants also travel through, camp, fish, hunt and gather natural resources on the application area like their predecessors showed them.
[97]	For the purposes of s 190B(5)(a), I must also be satisfied that there is sufficient factual material to support the assertion of an association between the group and the whole area. The asserted facts indicate that the predecessors resided at camps within or proximate to the northern, central, southern, western and eastern regions. Apical ancestor Fred Collins worked near the southeastern region and Paddy Murphy worked within the southern region. Current members of the native title claim group have knowledge of old camps, caves, a gender specific site near the southeastern region, and burial sites and fish traps in the mid-western region. They camp and fish within and near the southern, eastern and western regions. Some families live and work in the central region. 
[98]	From the above information, I consider that the factual basis is sufficient to support the assertion of an association, both physical and spiritual, ‘between the whole group and the area’ — see Gudjala 2007 at [52]. In my view, the factual basis material provides sufficient examples and facts of the necessary geographical particularity to support the assertion of an association between the whole group and the whole area.
[99]	Given the information before me, I am satisfied that the factual basis provided is sufficient to support the assertion described by s 190B(5)(a).
Reasons for s 190B(5)(b)
The requirements of s 190B(5)(b)
[100]	The definition of ‘native title rights and interests’ in s 223(1) provides, at subsection (a), that those rights and interests must be ‘possessed under the traditional laws acknowledged, and traditional customs observed,’ by the native title holders. Noting the similar wording between this provision and the assertion at s 190B(5)(b), I consider that it is appropriate to apply s 190B(5)(b) in light of the case law regarding the definition of ‘native title rights and interests’ in s 223(1). In that regard, I have taken into consideration the observations of the High Court in Yorta Yorta about the meaning of the word ‘traditional’ — see Gudjala 2007 at [26] and [62] to [66].
[101]	In light of Yorta Yorta, I consider that a law or custom is ‘traditional’ where:
•	‘the origins of the content of the law or custom concerned are to be found in the normative rules’ of a society that existed prior to sovereignty, where the society consists of a body of persons united in and by its acknowledgement and observance of a body of law and customs — at [46] and [49];
•	the ‘normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty’ — at [47];
•	the law or custom has been passed from generation to generation of a society, but not merely by word of mouth — at [46] and [79];
•	those laws and customs have been acknowledged and observed without substantial interruption since sovereignty, having been passed down the generations to the claim group — at [87].
[102]	I note that in Gudjala 2009, Dowsett J also discussed some of the factors that may guide the Registrar, or his delegate, in assessing the asserted factual basis, including:
•	that the factual basis demonstrate the existence of a pre-sovereignty society and identify the persons who acknowledged and observed the laws and customs of the pre-sovereignty society — at [37] and [52];
•	that if descent from named ancestors is the basis of membership to the group, the factual basis demonstrate some relationship between those ancestral persons and the pre-sovereignty society from which the laws and customs are derived — at [40]; and
•	that the factual basis contain an explanation as to how the current laws and customs of the claim group are traditional (that is laws and customs of a pre-sovereignty society relating to rights and interests in land and waters). Further, the mere assertion that current laws and customs of a native title claim group are traditional because they derive from a pre-sovereignty society from which the claim group is said to be descended, is not a sufficient factual basis for the purposes of s 190B(5)(b) — at [29], [54] and [69].
Information provided in support of the assertion at s 190B(5)(b)
[103]	The factual basis contains information about the traditional laws and customs of the Mardigan native title claim group, some of which I refer to below.
[104]	Anthropological and historical records show that there was a traditional Aboriginal system in operation in Western Queensland which included the application area — Attachment F&M at 4. The system included tribal organisation and a social organisation regulating country, marriage, totems and other matters. The Mardigan people are identified and accepted by neighbouring groups as having a distinct and separate identity with a distinct territory — at 17.
[105]	Membership to the Mardigan native title claim group is characterised by unbroken descent and affiliation rules from an apical ancestor who is Mardigan — at 17. The native title claim group follow a system of social organisation which governs kin terms and marriage rules and children inherit their moiety from their mother. Claimants continue to have knowledge of their totem or ‘meats’ which are distinguished through a particular animal. A totem carries significance as they indicate respect for the particular animal and governs marriage rules as persons with the same totem cannot marry — at 20.
[106]	Mardigan traditional law dictates the extent of land rights in the application area and regulates the use of this land defining areas that can be exploited, such as by camping, hunting, fishing and gathering natural resources, and those areas that must be respected and avoided — at 4. Apical ancestor Paddy Murphy would take his grandchildren camping, fishing and gathering natural resources in Mardigan country. His grandson was shown how to dig for yams and pick wild fruit. He was also shown where all the rock holes and native wells were located and how to clean them out. His grandson has passed this knowledge to his own children and grandchildren. Another claimant says she was taught by her grandmother to hunt and track animals and she has passed these traditional hunting practices to her son — at 12. The members of the native title claim group are shown what to eat and what not to eat — at 12. The claimants also continue to have knowledge of traditional cooking practices and plants that can be used for medicinal purposes — at 11 – 12 and 15. Fishing continues to be associated with a ritual that shows how to catch the best fish and how to be protected from spirits at waterholes — at 14 and 23.
[107]	The claimants continue to manage and protect places of importance on Mardigan country. They protect burial sites and the traditional fish traps, and clean rock holes and native wells. The claim members visit sites and if they are damaged they maintain them, such as by fencing sites — at 17 – 18.
[108]	The claim group members continue to follow a system where permission is sought from elders before accessing Mardigan country — at 5. The claimants continue to make decisions about their country and families consult each other before holding meetings to discuss, with elders having the final say — at 11.
[109]	The claim members continue to believe in myths and believe their country is imbued with spiritual presence. The have knowledge of significant sites some of which are restricted, such as the cave sites which have ‘evil influences’ — at 4. The claim group has knowledge of gender specific sites on country and waterholes which are associated with a dreaming story — at 4 and 20. The claimants also ‘sing out’ when approaching a camp or fishing area, showing respect and appropriate behaviour to Mardigan ancestors — see Attachment M.
[110]	Current members continue to have knowledge of ceremonial law and custom which was taught to them by their predecessors — Attachment F&M at 16. They speak of men’s and women’s ceremonies and sites. The claimants continue to perform smoking ceremonies to prevent ‘bad things happening’ in a Mardigan person’s house and know the protocols associated with the ritual. 
[111]	Mardigan children are taught by their uncles how to make boomerangs and other items their predecessors used, by being shown how to collect wood to make artefacts. They are also shown how to make traditional paintings by using ochre — at 16. Children are told stories which they depict in their paintings. 
[112]	 I note that the information extracted at s 190B(5)(a) is also relevant to my consideration of the assertions at s 190B(5)(b).
Consideration
[113]	In my view, in order to support the assertion that the relevant laws and customs are ‘traditional’ in the Yorta Yorta sense, the factual basis must include factual details of:
•	the relevant pre-sovereignty society from which the claim group is descended and the persons who acknowledged and observed the laws and customs of the pre-sovereignty society;
•	the connection between the apical ancestors of the native title claim group and the pre-sovereignty society from which the laws and customs are derived; and
•	the connection between the laws and customs acknowledged and observed by the pre-sovereignty society and those of the current claim group.
[114]	In my view, the factual basis identifies a relevant pre-sovereignty society in the application area which consisted of the predecessors of the native title claim group who acknowledged and observed a body of laws and customs. Attachment F&M indicates that the society was located in Western Queensland and observed a system involving tribal organisation and social organisation regulating country, marriage, totems and other matters. Neighbouring groups have distinct identities and separate territories. 
[115]	I infer from the factual basis that some of the apical ancestors identified in Schedule A were likely to have been part of, with or without others, the society at or around the time of sustained European settlement of the application area given they were working in or around the application area shortly after sustained settlement — see my reasons at s 190B(5)(a) above. From the asserted facts, I understand the current claim members are descendants of these ancestors. 
[116]	I am also of the view that there is information contained within the factual basis material from which the current laws and customs can be compared with those that are asserted to have existed at sovereignty. The Mardigan People continue to follow a system of social organisation and kinship which governs marriage and they have knowledge of their totems.
[117]	The Mardigan people observe a landholding system which regulates the extent of rights, responsibilities and usage of land. The laws and customs define areas that can be exploited through activities such as camping, hunting, fishing and gathering natural resources as well as defining country which must be avoided due to spiritual influence and gender specific sites.
[118]	The asserted facts provide that some of Mardigan traditional laws and customs are derived from the need to manage and protect country, such as laws and customs regarding avoiding specific places and protecting sites. The factual basis demonstrates that claim group members have knowledge of sacred sites and places of avoidance on country, such as gender specific sites, caves and burial places. They continue to protect sites of significance, such as rock holes, native wells, burial places and traditional fish traps. The younger generations learn these laws and customs through stories about their country and are shown traditional practices from their predecessors. 
[119]	The factual basis contains some information which speaks to the way the claim group continues to perform traditional practices such as hunting, fishing and gathering natural resources for various purposes such as making boomerangs and for painting the traditional way. The claim group members also speak of the need to seek permission from their elders for travelling across the application area, which is still practiced by neighbouring groups. This in my view demonstrates that the laws and customs currently observed are relatively unchanged from those acknowledged and observed by their predecessors, and that they have been passed down the generations to the claimants today. 
[120]	The factual basis also contains references to current observance and acknowledgement of laws and customs of a spiritual nature. The claimants speak of ‘evil influences’ at certain places on country and speak of performing smoking ceremonies to ward off bad spirits in homes. The claimants believe in myths and that certain places on country are associated with a dreaming story. They believe in totems which are associated with a particular animal and that they inherit from their mother. 
[121]	The factual basis, in my view, is sufficient to support the assertion that the relevant laws and customs, acknowledged and observed by this society, have been passed down through the generations, by word of mouth and common practice, to the current members of the claim group, and have been acknowledged by them without substantial interruption. The asserted facts state that apical ancestor Paddy Murphy would take his grandchildren camping, fishing and gathering bush resources. I infer that, given one apical ancestor appears to have taught his grandchildren in this manner, the level of detail in the continued acknowledgement and observance of the group’s cultural traditions, and the fact that there are references to grandchildren of the apical ancestors teaching their descendants the laws and customs, other apical ancestors would have also practiced these modes of teachings. It follows, in my view, that the laws and customs currently observed and acknowledged are ‘traditional’ in the Yorta Yorta sense as they derive from a society that existed at the time of sustained European settlement.
[122]	 I am satisfied that the factual basis provided is sufficient to support the assertion described by s 190B(5)(b).
Reasons for s 190B(5)(c)
[123]	This condition is concerned with whether the factual basis is sufficient to support the assertion that the native title claim group has continued to hold the native title rights and interests claimed in accordance with their traditional laws and customs. 
[124]	In Martin, French J held that:
[u]nder s 190B(5)(c) the delegate had to be satisfied that there was a factual basis supporting the assertion that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs. This is plainly a reference to the traditional laws and customs which answer the description set out in par (b) of s 190B(5) — at [29].
[125]	Accordingly, meeting the requirements of this condition relies on whether there is a sufficient factual basis to support the assertion at s 190B(5)(b) that there exist traditional laws and customs which give rise to the claimed native title rights and interests. In my view, this assertion relates to the continued holding of native title through the continued observance of the traditional laws and customs of the group.
[126]	In addressing this aspect of the test, in Gudjala 2009, Dowsett J considered that where the claimant’s factual basis relied upon the drawing of inferences, that: 
[c]lear evidence of a pre-sovereignty society and its laws and customs, of genealogical links between that society and the claim group, and an apparent similarity of laws and customs may justify an inference of continuity’— at [33]. 
Consideration 
[127]	There is, in my view, information within the factual basis material that goes to explaining the transmission and continuity of the native title rights and interests held in the application area in accordance with relevant traditional laws and customs. 
[128]	The factual basis provides references to the predecessors telling stories and teaching practices to the younger generation. For instance, a Mardigan elder says he learned about Mardigan traditions from his grandfather, apical ancestor Paddy Murphy — Attachment F&M at 20. Paddy Murphy would take his grandchildren camping, fishing and gathering natural resources in Mardigan country — at 4. His grandson was also shown how to dig for yams and pick wild fruit and shown where all the rock holes and native wells were located and how to clean them out. His grandson has passed this knowledge to his own children and grandchildren. Another claimant takes trips to Mardigan country with her extended family to go hunting, fishing and gathering plants for medicinal purposes and says she passes on her knowledge to her son and grandson by teaching them oral tradition and showing them important places — at 21.
[129]	In reaching my view in relation to this requirement, I have also considered my reasons in relation to s 190B(5)(b) and in particular that: 
•	the relevant pre-sovereignty society has been clearly identified and some facts in relation to that society have been set out;
•	there is some information pertaining to the acknowledgement and observance of laws and customs by previous generations of Mardigan People in relation to the application area;
•	examples of the claim group’s current acknowledgement and observance of laws and customs in relation to the application area have been provided.
[130]	I am satisfied that the factual basis provided is sufficient to support the assertion described by s 190B(5)(c).
[131]	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.
[132]	The claimed native title rights and interests that I consider can be prima facie established is identified in my reasons below.
The requirements of s 190B(6)
[133]	The requirements of this section are concerned with whether the native title rights and interests, identified and claimed in this application, can be prima facie established. Thus, ‘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]. Nonetheless, it does involve some ‘measure’ and ‘weighing’ of the factual basis and imposes ‘a more onerous test to be applied to the individual rights and interests claimed’ — at [126], [127] and [132]. 
[134]	I note that this section is one that permits consideration of material that is beyond the parameters of the application — at [16].   
[135]	I understand that the requirements of s 190B(6) are to be considered in light of the definition of ‘native title rights and interests’ at s 223(1) — Gudjala 2007 at [85]. I must, therefore, consider whether, prima facie, the individual rights and interests claimed:
•	exist under traditional laws and customs in relation to any of the land or waters in the application area; 
•	are native title rights and interests in relation to land or waters; and 
•	have not been extinguished over the whole of the application area.   
[136]	I also understand that the claimed native title rights and interests:
must nonetheless be rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by the peoples in question. Further, the connection which the peoples concerned have with the land or waters must be shown to be a connection by their traditional laws and customs. For the reasons given earlier, “traditional” in this context must be understood to refer to the body of law and customs acknowledged and observed by the ancestors of the claimants at the time of sovereignty — Yorta Yorta at [86], cited in Gudjala 2007 at [86].
[137]	I am therefore of the view that a claimed native title right and interest can be prima facie established if the factual basis is sufficient to demonstrate that they are possessed pursuant to the traditional laws and customs of the native title claim group.
[138]	I note that the ‘critical threshold question’ for recognition of a native title right or interest under the Act ‘is whether it is a right or interest “in relation to” land or waters’ — Western Australia v Ward [2002] HCA 28 (Ward HC) per Kirby J at [577]. I also note that the phrase ‘in relation to’ is ’of wide import’ — Northern Territory of Australia v Alyawarr, Kaytetye, Wurumunga, Wakaya Native Title Claim Group [2005] FCAFC 135 at [93].  Having examined the native title rights and interests set out in Schedule E of the application, I am of the opinion that they are, prima facie, rights or interests ‘in relation to land or waters.’ 
[139]	I also note that I consider that Schedules B and L of the application sufficiently address any issue of extinguishment, for the purpose of the test at s 190B(6). 
[140]	Before I consider the rights and interests claimed, I note that my reasons at s 190B(6) should be considered in conjunction with, and in addition to, my reasons and the material outlined at s 190B(5).  
Rights prima facie established
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 or where s238, ss47, 47A or 47B apply), the Mardigan People claim the right to possess, occupy, use and enjoy the lands and waters of the application area as against the whole world, pursuant to the traditional laws and customs of the claim group.
[141]	The majority of the High Court in 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 [emphasis added]’ — at [89]. The High Court further noted that the expression, collectively, 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 [93]. 
[142]	In Griffiths v Northern Territory of Australia [2007] FCAFC 178, the Full Court, whilst exploring the relevant requirements to proving that such exclusive rights are vested in a native title claim group, stated that: 
the question whether the native title rights of a given native title claim group include the right to exclude others from the land the subject of their application does not depend upon any formal classification of such rights as usufructuary or proprietary. It depends rather on the consideration of what the evidence discloses about their content under traditional law and custom [emphasis added] — at [71]. 
[143]	I also note the Full Court’s observations in relation to control of access to country that:
[i]f control of access to country flows from spiritual necessity because of the harm that “the country” will inflict upon unauthorised entry, that control can nevertheless support a characterisation of the native title rights and interests as exclusive. The relationship to country is essentially a “spiritual affair”. 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. The question of exclusivity depends upon the ability of the [native title holders] effectively to exclude from their country people not of their community. If, according to their traditional law and custom, spiritual sanctions are visited upon unauthorised entry and if they are the gatekeepers for the purpose of preventing such harm and avoiding injury to the country, then they have … an exclusive right of possession, use and occupation — at [127]. 
[144]	The above paragraphs point to the nature of this right in land and waters. In examining whether the claimants’ material prima facie establishes its existence, I am of the view that this right materialises from traditional laws and customs that permit the native title claim group to exhibit control over all others in relation to access to the land and waters. 
[145]	The factual basis is such that it is asserted that at the time of sustained European settlement, there existed an association between the Mardigan people and its land and waters — see my reasons at s 190B(5)(a). 
[146]	The factual basis provides that the Mardigan people maintain the traditional right to exclude all others from the application area. They consider they are the guardians of their country and believe their country should not be touched and things should not be taken from it by outsiders — Attachment F&M at 18. The asserted facts indicate that the predecessors resisted European incursions. The neighbouring groups continue to recognise the need to seek permission before accessing Mardigan country — at 5.
[147]	Members of the claim group believe their country is imbued with a potent spirituality and believe that some places on country have ‘evil influences’ and should be avoided — at 4. Mardigan People believe that permission must be sought before going on country and say outsiders will get sick or hurt if they do not. The claimants also have knowledge of certain practices that must be performed to prevent spirits from following them — at 8.
[148]	I am of the view that the factual basis material asserts that current members of the native title group maintain vast knowledge of their country. The knowledge of the laws and customs of the current members, as owners of their traditional land and waters, elicit that they have a ‘spiritual affair’ with their country and have the right to exclude other people from it. In my view, such control flows from a right to speak for country and a spiritual necessity to protect country and others from harm and injury. The claimants consider they are the guardians of their land and believe that things should not be touched or disturbed from it. I understand this symbolic ownership encompasses the right to speak for country and the right to exclude. 
[149]	I consider that this right is prima facie established.
2. Over areas where a claim to exclusive possession cannot be recognised, the Mardigan People claim the following rights and interests:
(a) the right to access the application area;
(b) the right to camp on the application area;
(c) the right to erect shelters on the application area;
(d) the right to exist on the application area;
(e) the right to move about the application area;
[150]	The factual basis indicates that the predecessors of the claim group resided, traversed and camped on country, built traditional structures, and accessed country for various traditional purposes such as to hunt, gather natural foods, visit sites and conduct ceremonies – Attachment F&M at 5 – 10. Current claimants speak of accessing the application area for work, visiting family, fishing and foraging, they travel across Mardigan country following paths shown to them by their predecessors and they continue to erect shelters on the application area, such as for camping. 
[151]	It is my view that the factual basis material prima facie establishes that these rights are possessed pursuant to the traditional laws and customs of the native title claim group. 
(g) the right to hunt on the application area;
(h) the right to fish on the application area;
(i) the right to use the natural water resources of the application area including the beds and banks of watercourses;
(j) the right to gather the natural products of the application area (including food, medicinal plants, timber, stone, ochre and resin) according to traditional laws and customs;
(q) the right to cultivate and harvest native flora according to traditional laws and customs
[152]	The factual basis contains references to members of the claim group and their predecessors hunting and fishing in the Mardigan country and also utilising the natural resources of the land. 
[153]	The factual basis contains references to the predecessors of the claim group hunting traditional foods such as goannas and lizards and archaeological research indicates that they used fish traps to exploit the aquatic resources — at 11 – 12. Archaeological research also shows scattered artefacts along the beds and banks of watercourses indicating that the predecessors used the natural water resources — at 13. 
[154]	Current claimants continue to hunt and fish for bush foods and use the water resources. They also gather natural resources like their predecessors and make artefacts such as boomerangs from wood, use ochre to paint, and use plants for medicinal purposes.
[155]	In my view, these rights are prima facie established under Mardigan traditional laws and customs.

(f) the right to hold meetings on the application area;
(k) the right to conduct ceremony on the application area;
(l) the right to participate in cultural activities on the application area;
[156]	The factual basis indicates that the claim members hold meetings to make decisions about Mardigan country and that their predecessors would meet neighbouring groups on country. The claimants continue to conduct smoking ceremonies on country and perform traditional practices such as make artefacts from wood and use ochre for painting dreams — at 16 – 17.
[157]	I am of the view that these rights are prima facie established pursuant to the traditional laws and customs of the native title claim group.
(m) the right to maintain places of importance under traditional laws, customs and practices in the application area;
(n) the right to protect places of importance under traditional laws, customs and practices in the application area;
[158]	The factual basis indicates that particular families or descent groups have the responsibility to maintain and protect places of importance and areas of significance on the application area, such as burial places and the traditional fish traps — at 17 – 18. 
[159]	I consider these rights are prima facie established under Mardigan traditional laws and customs.
(o) the right to conduct burials on the application area;
[160]	The claimants have knowledge of burial sites of their predecessors on the application area and they continue to conduct burials within the application area — at 19.
[161]	In my view, this right is prima facie established pursuant to Mardigan traditional laws and customs.
(p) the right to speak for and make non-exclusive decisions about the application area;
[162]	The factual basis contains references to sites of avoidance, such as gender specific sites, and to claim group members holding meetings and making decisions about country — at 15 and 19.
[163]	In my opinion, this right is prima facie established under Mardigan traditional laws and customs.
Conclusion 
[164]	As I am satisfied that at least one of the native title rights and interests claimed has been prima facie established, 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.
[165]	The High Court’s decision in Yorta Yorta and the Federal Court’s decision in Gudjala 2009 are of primary relevance in interpreting the requirements of s 190B(7). In the latter case, Dowsett J observed that it ‘seems likely that [the traditional physical] connection must be in exercise of a right or interest in land or waters held pursuant to traditional laws and customs’ — at [84]. In interpreting connection in the ‘traditional’ sense as required by s 223 of the Act, the members of the joint judgment in Yorta Yorta felt that: 
the connection which the peoples concerned have with the land or waters must be shown to be a connection by their traditional laws and customs … “traditional” in this context must be understood to refer to the body of law and customs acknowledged and observed by the ancestors of the claimants at the time of sovereignty — at [86].   
[166]	I consider that for the purposes of s 190B(7), I must be satisfied of a particular fact or facts, from the material provided, that at least one member of the claim group has or had the necessary traditional physical association with the application area — Doepel at [18]. 
[167]	I refer to the information above in relation to s 190B(5) of these reasons, which provide a sufficient factual basis supporting the assertion that the Mardigan People acknowledge and observe the traditional laws and customs of the pre-sovereignty society. 
[168]	I note that the factual basis contains relevant information that describe a traditional physical association of the Mardigan People with the application area, including travelling, hunting, fishing, gathering natural resources and camping on country — Attachment F&M at 5 -6 and 11 – 13. There are also references to claim members currently residing on the application area and also working within it — see also Attachment M. 
[169]	Given the above, and considering all of the information provided with the application, I am satisfied that at least one member of the native title claim group currently has or previously had a traditional physical connection with the land or waters within the application area.
[170]	The application satisfies the condition of s 190B(7).

Subsection 190B(8)
No failure to comply with s 61A
The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that because of s 61A (which forbids the making of applications where there have been previous native title determinations or exclusive or non-exclusive possession acts), the application should not have been made.

Section 61A provides:
(1)	A native title determination application must not be made in relation to an area for which there is an approved determination of native title.
(2)	If :
(a)	a previous exclusive possession act (see s 23B) was done, 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 provisions 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, 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 provisions 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 confer possession, occupation, use and enjoyment of any of the area to the exclusion of all others.
(4)	However, subsection(2) and (3) does not apply if:
(a)	the only previous non-exclusive possession act 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 ss 47, 47A or 47B, as the case may be, applies to it.
[171]	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.
Reasons for s 61A(1)
[172]	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. 
[173]	The geospatial assessment states that no determinations of native title fall within the external boundaries of the application area. The results of my own search of the Tribunal’s mapping database confirm that there is no overlap with any native title determination. It follows that the application is not made in relation to an area for which there is an approved determination of native title.
[174]	In my view the application does not offend the provisions of s 61A(1).
Reasons for s 61A(2)
[175]	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. 
[176]	Schedule B indicates that areas which are subject to valid exclusive possession acts are excluded from the application, except to the extent that ss 47, 47A or 47B of the Act may apply. 
[177]	In my view the application does not offend the provisions of s 61A(2).
Reasons for s 61A(3)
[178]	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. 
[179]	I am satisfied that the application does not claim native title rights and interests that confer possession, occupation, use and enjoyment to the exclusion of all others in an area that is, or has been, subject of a previous non-exclusive possession act, except to the extent that ss 47, 47A or 47B of the Act may apply — see Schedule B.
[180]	In my view, the application does not offend the provisions of s 61A(3).
Conclusion
[181]	In my view the application does not offend any of the provisions of ss 61A(1), (2) and (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.
[182]	I consider each of the subconditions of s 190B(9) in my reasons below.
Reasons for s 190B(9)(a)
[183]	Schedule Q provides that the native title claim group does not claim ownership of minerals, petroleum or gas that are wholly owned by the Crown.
[184]	The application satisfies the subcondition of s 190B(9)(a).
Reasons for s 190B(9)(b)
[185]	Schedule P indicates that the native title claim group does not claim exclusive possession of all or part of an offshore place.
[186]	The application satisfies the subcondition of s 190B(9)(b).
Reasons for s 190B(9)(c)
[187]	The application does not disclose, nor is there any information before me to indicate, that the native title rights and interests claimed have otherwise been extinguished. The application also claims the protections afforded by ss 47, 47A and 47B — see Schedules B and L.
Conclusion
[188]	The application satisfies the condition of s 190B(9), because it meets all of the three subconditions, as set out in the reasons above.

[End of reasons]

Attachment A
Information to be included on the Register of Native Title Claims
Application name	Mardigan People	
NNTT file no.	QC2007/001	
Federal Court of Australia file no.	QUD26/2007	

In accordance with ss 190(1) and 186 of the Native Title Act 1993 (Cth), the following is to be entered on the Register of Native Title Claims for the above application.
Section 186(1): Mandatory information
Application filed/lodged with:
Federal Court of Australia
Date application filed/lodged:
17 January 2007
Date application entered on Register:
6 June 2007
Applicant:
As appears on the extract from the Schedule of Native Title Applications
Applicant’s address for service:
As appears on the extract from the Schedule of Native Title Applications
Area covered by application:
As appears on the extract from the Schedule of Native Title Applications except change the following in paragraph 4:
	‘-S23B(9) – Exclusion of acts benefiting Aboriginal Peoples or Torres Strait Islanders;’
Persons claiming to hold native title:
As appears on the extract from the Schedule of Native Title Applications
Registered native title rights and interests:
As appears on the extract from the Schedule of Native Title Applications

[End of document]