Registration Decision

Application name	Wulli Wulli People #3 	
Name of applicant	Ann Betts, Rachael Briggs, Erica Gyemore, Mary Boney, Christine Lister	
Federal Court of Australia No.	QUD619/2017	
NNTT No.	QC2017/011	
Date of Decision	23 February 2018	
Reasons for Decision	27 February 2018	

Claim accepted for registration
I have decided that the claim in the Wulli Wulli People #3 application satisfies all of the conditions in ss 190B and 190C of the Native Title Act 1993 (Cth). Therefore the claim must be accepted for registration and entered on the Register of Native Title Claims.

___________________________________
Radhika Prasad
Delegate of the Native Title Registrar

Reasons for Decision
CASES CITED
Anderson on behalf of the Numbahjing Clan within the Bundjalung Nation v Registrar of the National Native Title Tribunal [2012] FCA 1215 (Anderson)
Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625 (Aplin)
Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373 (Burragubba)
Corunna v Native Title Registrar [2013] FCA 372 (Corunna)
Dann v Yamera [2017] FCA 513 (Dann)
Evans v Native Title Registrar [2004] FCA 1070 (Evans)
Gudjala People #2 v Native Title Registrar [2007] FCA 1167 (Gudjala 2007)
Gudjala People # 2 v Native Title Registrar (2008) 171 FCR 317; [2008] FCAFC 157 (Gudjala FC)
Gudjala People #2 v Native Title Registrar [2009] FCA 1572 (Gudjala 2009)
Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 5) [2003] FCA 218 (Harrington-Smith (No 5))
Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 (Harrington-Smith (No 9))
Hazelbane v Doepel [2008] FCA 290 (Hazelbane v Doepel)
Lawson on behalf of the ‘Pooncarie’ Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 (Lawson)
Martin v Native Title Registrar [2001] FCA 16 (Martin) 
Members of the Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; [2002] HCA 58 (Yorta Yorta).
Northern Territory of Australia v Alyawarr, Kaytetye, Wurumunga, Wakaya Native Title Claim Group [2005] FCAFC 135 (Alyawarr)
Northern Territory of Australia v Doepel (2003) 133 FCR 112; [2003] FCA 1384 (Doepel)
Risk v National Native Title Tribunal [2000] FCA 1589 (Risk) 
Sampi v State of Western Australia [2005] FCA 777 (Sampi)
Sampi on behalf of the Bardi and Jawi People v State of Western Australia [2010] FCAFC 26 (Sampi FC)
State of Western Australia v Strickland [2000] FCA 652 (Strickland FC) 
Strickland v Native Title Registrar [1999] FCA 1530 (Strickland) 
Ward v Northern Territory [2002] FCA 171 (Ward) 
Western Australia v Native Title Registrar (1999) 95 FCR 93; [1999] FCA 1591 (WA v NTR)
Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 (Weribone)
Wiri People v Native Title Registrar [2008] FCA 574 (Wiri People)

BACKGROUND
[1]	The application was filed on behalf of the Wulli Wulli People native title claim group. It covers two parcels of land and waters around Upper Burnett and Dawson River region in Queensland.
[2]	The Registrar of the Federal Court (Court) gave a copy of the application and accompanying affidavits to the Native Title Registrar (Registrar) on 15 November 2017 pursuant to s 63 of the Act. 
[3]	The application has been made in response to a notice issued in relation to the grant of tenements (EPM26660) in accordance with s 29 of the Act with a notification date of 25 October 2017. The application was filed within the three month statutory timeframe over the area affected by the future act notice and this has required me to use my best endeavours to finish considering the claim by the end of four months after the notification day, that is 25 February 2018.
[4]	If the claim in the application satisfies all the registration test conditions in ss 190B and 190C, then the Registrar must accept the claim for registration. If it does not satisfy all the conditions, the Registrar must not accept the claim for registration.
[5]	As discussed in my reasons below, I consider that the claim in the application satisfies all of the conditions in ss 190B and 190C and therefore it must be accepted for registration. 
Information considered
[6]	In reaching this decision, I have considered s 190A(3) which 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:
•	the information contained in the application and accompanying documents;
•	the additional material provided by the applicant on 29 November 2017, including an anthropologist’s report dated 22 November 2017 and six affidavits from members of the claim group;
•	the geospatial assessment prepared by the Tribunal’s Geospatial Services on 1 December 2017; 
•	the unsolicited information provided on behalf of the Gaangalu Nation People applicant on 21 December 2017;
•	the response from the applicant in relation to the unsolicited information on 10 January 2018; and
•	the results of my own searches using the Tribunal’s registers and mapping database.

Procedural fairness process
[7]	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. The steps undertaken to ensure procedural fairness is observed are as follows:
•	On 21 November 2017, the practice leader for this matter sent a letter to the State of Queensland (the State) enclosing a copy of the amended application and accompanying documents. That letter informed the State that any submission in relation to the registration of this claim should be provided by 5 December 2017.
•	The practice leader, also on 21 November 2017, wrote to inform the applicant that any additional information should be provided by 5 December 2017. 
•	On 21 November 2017, the State advised, by email, that it did not wish to make any submission in relation to the registration of the claim.
•	On 29 November 2017, the applicant provided additional information.
•	On 21 December 2017, unsolicited information was provided to the Registrar on behalf of the Gaangalu Nation People applicant. The Gaangalu Nation People applicant was informed, by letter of the same date from the practice leader, that unlike the applicant and the State, they were not a person or party who is owed procedural fairness and therefore they would not be given an opportunity to provide additional information or comment upon responses provided by the applicant and/or State.
•	On 3 January 2018, the unsolicited information was sent to the applicant for comment. The applicant was informed that any comment should be provided by 12 January 2018. 
•	On 10 January 2018, the applicant provided submissions in response to the unsolicited information received.
•	On 12 January 2015, the practice leader provided the applicant’s additional information, the unsolicited information from the Gaangalu Nation People applicant and the applicant’s response to the unsolicited information to the State for comment. The State advised that it would not be making any submission.
Procedural and other matters (s 190C)
Information etc. required by sections 61 and 62 – s 190C(2) 
[8]	The application satisfies the condition of s 190C(2), because it contains all of the details and other information and documents required by ss 61 and 62, as set out in the reasons below. 
What is required to meet this condition?
[9]	In coming to the above conclusion, 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). Accordingly, the application must contain the prescribed details and other information in order to satisfy the requirements of s 190C(2).
[10]	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 ss 61(2) and (5), as those subsections either impose no obligations of this nature in relation to the application or are already tested where required by those parts of ss 61 and 62.
Does the claim contain the prescribed information and is it accompanied by prescribed documents?
[11]	The claim meets this condition because it does contain the prescribed details and other information and is accompanied by the prescribed affidavits, as set out in the following reasons.
Applications that may be made: s 61(1)
[12]	Schedule A of the application provides a description of the native title claim group and the s 62 affidavits indicate that the persons comprising the applicant are included in the native title claim group. 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.
Applicant’s name and address for service: s 61(3)
[13]	Part B of the application contains the name and address for service of the applicant’s representative. 
Applications authorised by persons: s 61(4)
[14]	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. 
Affidavits in prescribed form: s 62(1)(a)
[15]	The application is accompanied by affidavits affirmed by each of the persons who comprise the applicant. The affidavits 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). 
Information about the boundaries of the area covered by the application and any areas within those boundaries not covered and map showing the boundaries: s 62(2)(a) & (b)
[16]	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.
[17]	Attachment C contains a map showing the external boundary of the application area.

Searches of any non-native title rights and interests carried out: s 62(2)(c)
[18]	Schedule D indicates that no searches have been carried out by the applicant to determine the existence of any non-native title rights and interests in relation to the land or waters in the area covered by the application of which the applicant is aware.
Description of native title rights and interests claimed in relation to particular land or waters: s 62(2)(d)
[19]	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.
General description of factual basis for assertion that native title exists: s 62(2)(e)
[20]	Schedule F 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)
[21]	Schedule G contains details 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)
[22]	Schedule H states that there are no existing native title determinations in relation to the area covered by the application.
Future act notices: ss 62(2)(ga) and (h)
[23]	Schedule HA provides that the applicant is unaware of any notifications under paragraph 24MD(6B)(c) that have been given and that relate to the whole or part of the application area.
[24]	Attachment I provide details of notices issued under s 29 that have been given and that relate to the whole or part of the application area.
No previous overlapping claim group – s 190C(3)
[25]	As indicated in my reasons below, the application satisfies the condition of s 190C(3).
[26]	In my view, this condition requires that the Registrar be satisfied that there are no common claimants where there is a previous application that comes within the terms of subsections (a) to (c). 
[27]	Although the text of this provision reads in the past tense, 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 provides that 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]’. The explanatory memorandum further discusses the general discouragement of overlapping claims by members of the same claim group and encouragement of consolidation of such multiple claims into one application.
[28]	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. 
[29]	I note that in assessing this requirement, I am able to address information which does not form part of the application. 
[30]	I also note that in reaching my view, I understand the nature of the Registrar’s task here is not to find ‘in all respects the real facts on the balance of probabilities, or on some other basis’ or ‘to supplant the role of the Court when adjudicating upon the application for determination of native title, or generally to undertake a preliminary hearing of the application’.
[31]	The geospatial assessment identifies the Wakka Wakka People #4 (QUD91/2012; QC2012/003) and Gaangalu Nation People (QUD400/2012; QC2012/009) native title determination applications as covering part of the area covered by the current application. This indicates that the entries for both applications were on the Register of Native Title Claims (Register) at the time the current application was made. In my view, both application meet the conditions specified under subsections (a) and (b).
[32]	The condition at subsection (c) is met when an entry was made, or not removed, as a result of the previous application being considered for registration under s 190A. I have accessed the Register and note that the entry on the Register for the Wakka Wakka People #4 application was made on 5 April 2012 as a result of the application being considered for registration under s 190A and has not been removed from the Register since that date. In relation to the Gaangalu Nation People application, the entry on the Register was made on 15 November 2012 as a result of the application being condition for registration under s 190A and has not been removed since that date. In light of the above, I am satisfied that the entry for both applications have not been removed from the Register. I am also satisfied that the applications were entered on the Register as a result of it being considered for registration pursuant to s 190A.
[33]	As both application meets all of the criteria for a ‘previous application’ stipulated by s 190C(3), I am therefore required to consider whether there are any members of the claim group for the previous applications in common with the claim group for the current application.
[34]	I have accessed from the Register, a description of the native title claim group for both previous application. 
[35]	The description of the Gaangalu Nation People native title claim group provides that the claim group comprises ‘all persons who are biologically descended from [a list of] deceased 
ancestors, all of whom are recognised by the living Gaangalu claim group members having been Gaangalu’. In my view, there are no persons named within that document that also appear within the claim group description for the current application, or that possess any similarity to persons named in that description. Further, I note that there are no similarities in the names of any of the apical ancestors specified for each of the applications, and that the information pertaining to those apical persons provided in each of the applications confirms that there are no common apical ancestors between the applications. For this reason, I am satisfied that no person included in the native title claim group for the current application was a member of the native title claim group for the previous application.
[36]	In relation to the Wakka Wakka People #4 application, the description of the native title claim group provides that the:
… claim group is made up of families whose members identify as Wakka Wakka, in accordance with traditional laws acknowledged and traditional customs observed by them. Membership is based on the principle of cognatic descent (i.e. descent traced through either mother or father).
This application is brought on behalf Aboriginal people whose members identify as Wakka Wakka People, who are descended from [a list of] ancestors … 
[37]	I have compared the description of the claim group of the Wakka Wakka People #4 application with the description in the current application and note that ‘John Bond’ is listed as an apical ancestor for the Wakka Wakka People #4 application and ‘Amy, wife of John Bond’ is listed as an apical ancestor for the current application.
[38]	I have considered the material before me including an anthropologist’s report of 22 November 2017. That report provides information about the apical ancestors for the current application and notes that John Bond had several wives, including Amy. In addition, the report says that the descendants of Amy’s oldest son ‘identify as Wulli Wulli and are recognised as Wulli Wulli by the Wulli Wulli People’. Her second son has no descendants. 
[39]	I also note Schedule O of the current application states that the ‘applicant or claim group members are not included in any other determination Application that covers the Claim Area’.
[40]	Understanding who may be a member of a particular claim group is ‘a matter of construction of the formula used by the group’. In this regard, I am of the view that in order to be a member of the Wakka Wakka People #4 native title claim group, persons must not only be descended from one of the Wakka Wakka ancestors that have been named but they must also identify as being Wakka Wakka. The material before me includes an anthropological report that says the descendants of the oldest son of Amy, wife of John Bond, identify as Wulli Wulli. I note I have not been provided any information that contradicts the above. In light of this information, and in the absence of any information to the contrary, I am unable to be satisfied that the descendants of Amy, wife of John Bond, are also members of the Wakka Wakka People #4 native title claim group.
[41]	Given the above information, I am satisfied that no person included in the native title claim group for the current application was a member of the native title claim group for this previous application. 
[42]	I am therefore satisfied that the requirements of s 190C(3) have been met.
Identity of claimed native title holders – s 190C(4) 
[43]	For the reasons set out below, I am satisfied that the requirements set out in s 190C(4)(b) are met.
What is required to meet this condition?
[44]	I must be satisfied that either the certification or authorisation requirements set out in ss 190C(4)(a) or (b) respectively are met, in order for the condition of s 190C(4) to be satisfied. 
[45]	Schedule R indicates that the application has not been certified. I must therefore consider whether the requirements of s 190C(4)(b) are met.  
Does the application contain the information specified in s 190C(5)?
[46]	Section 190C(5) contains a threshold test that must be met before the Registrar may be satisfied that the applicant is authorised in the way described in s 190C(4)(b). Section 190C(5) provides that the application must include a statement to the effect that the requirement set out in s 190C(4)(b) has been met and briefly set out the grounds on which the Registrar should consider that the requirement in s 190C(4)(b) has been met.
[47]	I note that the following statement is made in Schedule R of the application:
(a)	The persons who constitute the applicant are members of the claim group and are authorised to make this application and deal with matters in relation to it by all the other persons in the claim group.
(b)	The applicant is authorised to make the application in accordance with a decision making process agreed to and adopted by the claim there being no decision making process mandated by their traditional laws and customs for authorising things of this kind.
(c)	The applicant was appointed at a meeting specially convened for the purpose which was attended by members of the claim group.
[48]	In my view, the above constitutes a statement to the effect that the requirement in s 190C(4)(b) has been met and a brief outline of the grounds on which the applicant considers the Registrar should be satisfied that the requirements of s 190C(4)(b) are met. I assess whether the material provided addresses those requirements below.
What is required to meet the condition at s 190C(4)(b)?
[49]	I understand that:
•	s 190C(4)(b) requires the Registrar to be satisfied that the applicant has been authorised by all members of the native title claim group, which ‘clearly … involves some inquiry through the material available … to see if the necessary authorisation has been given’;
•	this condition requires the Registrar to be satisfied as to the identity of the claimed native title holders, including the applicant, and that the applicant needs to be authorised by all the other persons in the native title claim group;
•	this condition is not ‘to be met by formulaic statements in or in support of applications’; 
•	pursuant to s 251B, if there is a traditionally mandated decision making process, then that process must be followed to authorise the applicant, otherwise the process utilised for authorisation must be one that has been agreed to and adopted by the native title claim group.
What information has been provided in relation to this condition?
The applicant’s authorisation material 
[50]	In addition to Schedule R, further authorisation material is contained in Attachment R, which provides the following information about the authorisation meeting:
•	The solicitor for the Wulli Wulli people has been provided a database containing the contact details of the Wulli Wulli people. After each meeting of the claim group, the database is updated to include the contact details of additional and existing members. The database currently holds the details of 454 members of the claim group.
•	On 21 April 2017, letters were sent to all persons on that database notifying them of the authorisation meeting to be held at Mundubbera on 6 May 2017 (the authorisation meeting).
•	Copies of the notices for the authorisation meeting was placed in the North and Central Burnett Times and the Koori Mail. The notice of the meeting contained information about the date, time and location of the meeting, a map showing the proposed application areas and agenda for the meeting. The descendants of the apical ancestors identified in Schedule A who assert native title in the areas shown on the map as Wulli Wulli People were invited to attend the meeting.
•	The process used to notify all those persons of the meeting is consistent with processes used for all previous meetings of the claim group.
•	A consultant organised and oversaw the entire event, including arranging for staff to attend and assist with tasks such as setting and packing up, registration, reimbursement of attendees for travel and accommodation expenses, security, and audio-visual services.
•	A consultant anthropologist, engaged to provide expert opinion to progress other Wulli Wulli claims and who developed genealogies for the claim group for those proceedings, also attended the authorisation meeting. The anthropologist supervised the registration of attendees to ensure that all persons voting were descended from a Wulli Wulli apical ancestor, and provided a summary of her research in support of the proposed claim. The genealogies were used at registration and green coloured bands were secured around the wrists of members of the Wulli Wulli people so they could be easily identified and counted when voting on proposed resolutions. Attendance sheets, which were initialled and dated by the anthropologist, indicate that 111 Wulli Wulli people registered their attendance at the authorisation meeting.
•	The meeting attendees were provided with an agenda of the meeting and were shown a PowerPoint presentation containing the proposed wording for the resolutions to be passed. 
•	The agenda was discussed by the appointed chairperson and the claim group passed a resolution unanimously that confirmed that there is no particular traditional decision making process that must be followed for making decisions about whether to authorise the making of a new application. It was resolved unanimously that an agreed to and adopted process of decision making should be used. The decision making process involved:
-	A proposed decision will be put in the form of a clearly worded written resolution;
-	The resolution will be read out to the meeting;
-	The resolution must be moved and seconded before it is voted on;
-	A vote on the resolution will be taken by a show of hands;
-	A count will be undertaken by the chairperson (or their delegates) of those in favour, those against and those who wish to be recorded as abstaining; and
-	The chairperson will ensure that a record is made of the count.
•	This decision making process is consistent with the decision making process used at other meetings of the claim group.
•	The other resolutions passed, unanimously or by majority, included:
-	Only members of the Wulli Wulli people as described in the notice could vote and that those who were in attendance were descended from the apical ancestors and assert native title rights over the proposed claim areas as Wulli Wulli people.
-	File a native title claim on behalf of the Wulli Wulli people over identified parts of the proposed areas. This resolution was passed following:
o	the solicitor for the claim group summarising the evidence of the proposed claim and showing maps of the proposed application area;
o	the anthropologist giving an overview of her research; 
o	the attendees inspecting the maps and discussing the proposed claim; 
o	the anthropologist summarising her preliminary findings; and
o	advice being provided by the Wulli Wulli solicitor about what areas might be claimed based on the anthropologist’s preliminary views.
-	Authorisation of the persons comprising the applicant to make the application and to deal with matters arising in relation to it.
•	The minutes of the meeting indicate that attendees were able to ask questions and participate in the decision making process.
Unsolicited information from Gaangalu Nation People applicant 
[51]	I have also received unsolicited information from the representatives of the applicant for the Gaangalu Nation People claim. This submission refer to and/or submit that:
•	Justice Reeves decision in Burragubba, referring to cases such as Weribone, summarised principles relevant to the consideration of s 190C(4)(b) including that:
-	proper notice is essential to the validity of any authorisation meeting;
-	any authorisation decision must be that of the whole claim group concerned and that all members must be offered a reasonable opportunity to decide whether to attend;
-	the primary purpose of the notice is to result in a resolution concerning the authorisation of the applicant that is both fairly representative of the views of the whole of the claim group on that issue; and that constitutes the informed consent, or vote, of those present at the meeting.  
•	The notice prescribed the criteria for attendees to be that they had to meet the claim group description of descent, they had to assert native title over areas shown in the notice, and that assertion had to be as a Wulli Wulli person. This approach was similar to that which was impugned by Justice Reeves in Burragubba, and that the effect of both notices was to ensure a meeting not fairly representative of the whole claim group as is required to satisfy s 251B of the Act. 
•	It ‘can be inferred that the inconsistent [strict identification] criteria for participation at the Authorisation meeting was only imposed on attendees in light of the overlaps of the Wulli #3 Claim with the GNP claim and another native title claim’. 
•	The description of the claim group in the Form 1 does not impose identification criterion of asserting interests as Wulli Wulli People and has additional criteria to include those who are adopted, and is therefore broader than those persons entitled to attend the meeting authorising the claim. The claim could therefore not be properly authorised in circumstances where the native title claim group invited by the notice was narrower than the one that is described in the application.
•	The irregularities between the notice and the Form 1 and the irregularities between the claim group description in the application and the claim group described in earlier Wulli Wulli Determinations, which has two less apical ancestors, give rise to concerns whether the applicant was authorised by all of the people who hold the native title claimed.
Response on behalf of the applicant to the unsolicited information
[52]	In response, it is contended on behalf of the applicant that:
•	The notice was competent, and the applicant was properly authorised to make the Wulli Wulli People #3 claim;
•	In contrast to the notice in Weribone and Burragubba, the notice clearly identified the persons entitled to attend the authorisation meeting and described the business of the meeting, which was to authorise a proposed new claim by the Wulli Wulli People over the proposed areas shown on a map;
•	Unlike the notice in Burragubba, the notice of the authorisation meeting invited all members of the Wulli Wulli People to attend the authorisation meeting irrespective of whether or not they supported the proposed new claim; 
•	Given claims have already been made by other groups over the proposed claim area, it was appropriate that the notice limited attendance to descendants of the named apical ancestors who assert native title over the areas as Wulli Wulli People; and
•	Under traditional laws and customs, Wulli Wulli People do not distinguish between members by decent or adoption and once a person is adopted into a Wulli Wulli family, they are not distinguished from other members who are biologically related. 
Have the requirements of s 190C(4)(b) been met? 
[53]	I note that the first limb of s 190C(4)(b) requires that all the persons comprising the applicant must be members of the native title claim group. 
[54]	In each of their affidavits, the persons who jointly comprise the applicant depose that they are members of the native title claim group. I have not been provided with any material that contradicts those statements and information. It follows that I am satisfied that the persons who comprise the applicant are all members of the native title claim group.
[55]	In respect of the second limb of s 190C(4)(b), namely that the persons who jointly comprise the applicant are authorised by all the other members of the claim group to make the 
application and to deal with matters arising in relation to it, the decision making process utilised at the authorisation meeting must be identified. 
[56]	Section 251B identifies two distinct decision making processes, namely a process that is mandated by traditional laws and customs and one that has been agreed to and adopted by the native title claim group. Attachment R and the affidavits of the persons comprising the applicant indicate that the claim group does not have a decision making process that is traditionally mandated and therefore an agreed and adopted process was used during the authorisation meeting. Given this information, I have considered the applicant’s material in light of the requirements of s 251B(b).
[57]	In particular, I understand that the ‘effect of the section is to give the word “all” [in s 190C(4)(b)] a more limited meaning than it might otherwise have’ and that it ‘is sufficient if a decision is made once the members of the claim group are given every reasonable opportunity to participate in the decision-making process’.
[58]	I also understand that the following questions are required to be addressed about the authorisation process, although it is not required they be answered in any formal way as long as the substance of these questions are addressed: 
Who convened it and why was it convened? To whom was notice given and why was it given? What was the agenda for the meeting? Who attended the meeting? What was the authority of those who attended? Who chaired the meeting or otherwise controlled the proceedings of the meeting? By what right did that person have control of the meeting? Was there a list of attendees compiled, and if so by whom and when? Was the list verified by a second person? What resolutions were passed or decisions made? Were they unanimous, and if not, what was the voting for and against a particular resolution? Were there any apologies recorded?
[59]	In relation to the questions about the notice of the authorisation meeting, I have been referred to the decisions of Burragubba and Weribone. I note that Burragubba involved an application under s 66B to replace members of the authorised applicant. Justice Reeves referred to other decisions about proper notice, including Weribone where Rares J held that ‘[t]he notice must be sufficient to enable the persons to whom it is addressed … to judge for themselves whether to attend the meeting and vote for or against a proposal’ and that ‘fair notice of the business to be dealt with at the meeting’ must be given. Justice Reeves noted that ‘it is necessary that all members be offered a reasonable opportunity to decide whether to attend’. His Honour found the notice of the meeting before him to be defective because the purpose of the meeting described did not give fair notice of the business, namely to replace members of the applicant, or offer a reasonable opportunity to decide whether to attend the meeting and participate in its deliberation. In my view, the notice of the authorisation meeting held on 6 May 2017 did give fair notice of the business. Specifically, the notice states that the purpose is to consider whether to authorise the making of a native title determination application over the proposed areas shown on the map, authorise members of the claim group to make the proposed claim and deal with all matters arising in relation to it, and direct the applicant as to how it exercises its duties. 
[60]	In my view, identifying the members of the native title claim group on the notice as being descendants of a list of apical ancestors and who assert native title in the areas as shown on the map as Wulli Wulli does not indicate that not all or only a narrow portion of the native title claim group were invited to participate in the meeting. Rather, I consider the text of the notice suggests that those persons who were invited to attend were descendants of the apical ancestors, and who identified as Wulli Wulli or considered themselves to be part of the Wulli Wulli People native title claim group. 
[61]	I also do not consider that including two additional apical ancestors or not specifying that adopted persons were invited, suggests that there were irregularities with the notice. I understand that two additional apical ancestors were included as a result of further anthropological research that found they were Wulli Wulli ancestors who had a particular association with the application area. In relation to adopted person, I note that the notice invited the ‘descendants’ of the identified ancestors, which in my view includes both biological and adopted descendants of these ancestors. I therefore consider the authorisation meeting was properly notified.
[62]	In relation to the questions identified in Lawson, in my view, the substance of those questions has been addressed in the material provided. The information reveals the reasons for the authorisation meeting. It indicates that all reasonable steps were taken to advise members of the native title claim group of the authorisation meeting, which included by public notice and by letters, and the notice indicates that the claim group members were advised of the date, time, place and purpose of the meeting. The information also shows that the persons who were present at the meeting were given a reasonable opportunity to participate in the decision making process. In my view, the conduct of the meeting is such that those present agreed to use the adopted decision making process, and the actual process is indicative that it was inclusive allowing those present an opportunity to participate and have their votes count. For instance, the claim group members who were present were able to participate through discussion, asking questions and vote by a show of hands. The resolutions were passed, unanimously or by majority, including the authorisation of the persons comprising the current applicant to make the application and to deal with matters arising in relation to it. 
Decision
[63]	I consider the process adopted ensured that the persons who jointly comprise the applicant are authorised by all the other members of the claim group to make the application and to deal with matters arising in relation to it. It follows that I am satisfied that the condition of s 190C(4)(b) is met.

Merits of the claim (s 190B)
Identification of area subject to native title – s 190B(2) 
[64]	For the reasons set out below, the application satisfies the condition of s 190B(2).
What is needed to meet this condition?
[65]	For the purposes of s 190B(2), I must be satisfied that the information and map contained in the application 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. 
What information has been provided about the external boundary and excluded areas within this boundary?
[66]	Attachment B describes the application area as being three areas, described by an external boundary referencing Native title Determination applications, topographic features, land parcels and coordinate points. Schedule B lists some general exclusions.
[67]	Attachment C is a copy of a map prepared by the Tribunal’s geospatial services, titled ‘Wulli Wulli People #3’ and dated 2 November 2017. The map includes the application area depicted by a bold outline, topographic background, scalebar, location diagram, coordinates, and notes relating to the source and datum of data used to prepare the map. 
Decision
[68]	The geospatial assessment concludes that the written description and map of the application area are consistent and identify the application area with reasonable certainty.
[69]	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.
Identification of the native title claim group – s 190B(3) 
[70]	For the reasons set out below, the application satisfies the condition of s 190B(3).
What is needed to meet this condition?
[71]	I must be satisfied that either the persons in the native title claim group are named in the application (s 190B(3)(a)) or described sufficiently clearly so that it can be ascertained whether any particular person is in that group (s 190B(3)(b)).
[72]	When assessing the requirements of this provision, I understand that:
•	I am required to address only the content of the application; 
•	section 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’; 
•	where a claim group description contains a number of paragraphs, 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’; 
•	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’.
Does the description of the persons in the native title claim group meet this condition?
[73]	Schedule A describes the native title claim group as including persons:
•	who are recognised by other members of the claim group as being descended (including by adoption) from a deceased person who they recognise as having been a member of the Aboriginal landholding group for the application area (an apical ancestor); and
•	who identify as being a descendant of an apical ancestor (including by adoption). 
[74]	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. 
Consideration
[75]	Although there are a number of elements to the claim group description, I am of the view that this description is to be read as a discrete whole.
[76]	I will discuss each criterion below before deciding whether I am satisfied that the persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group.
[77]	I note that the unsolicited information that was made on behalf the Gaangalu Nation People applicant refers to irregularities in the claim group description in this application. I am, however, not permitted to consider this information when forming my view about whether the requirements of s 190B(3) have been met as I can only consider the information contained in the application. In reaching my view about this condition, therefore, I have been informed by the material contained in the application.
Descent
[78]	I understand this part of the description to include those persons who are the descendants, including by adoption, of the apical ancestors listed. I note that the Court has accepted the approach of identifying members of the native title claim group by biological descendants,
 including by adoption, of named people without any qualification indicating whether the method of adoption of persons was according to traditional laws and customs. 
[79]	I consider that requiring a member to show descent from an identified ancestor 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. I note Schedule F provides some rules about adoption, including that it typically occurs within extended families in accordance with kinship norms and that it is rare for a person to be adopted who is biologically unrelated to the adoptive family.
[80]	I am of the view that with some factual inquiry it will be possible to identify the persons who fit this part of the description of the native title claim group.
Recognition and Identification 
[81]	I note that a description of membership containing qualifiers of recognition and identification is not one with an external and objective point of reference from which to commence an inquiry.
[82]	The case law demonstrates that membership of a claim group is based on group acceptance and indicates that it is the claim group that must determine its own composition. The Court notes that ‘[i]t is not necessary that all of the members of the claim group be identified in the application’, however it is ‘necessary that such identification be possible at any future point in time’. The High Court in Yorta Yorta found that the existence of a society depended upon mutual recognition within the group. In Sampi FC, the Full Court noted that ‘in determining whether a group constitutes a society in the Yorta Yorta sense is the internal view of the members of the group … [t]he unity among members of the group required by Yorta Yorta means that they must identify as people together who are bound by the one set of laws and customs or normative system’. 
[83]	Having regard to the information contained in Schedule F, it is my view that identification and recognition as a Wulli Wulli person is linked to their descent of an apical ancestor and their connection to the land. In particular, Schedule F says that group membership is ‘determined by cognatic descent’ and that there ‘is widespread acceptance within the claim group of traditional adoption as a legitimate pathway to membership and holding rights within the group. It follows that, in my view, identification and recognition as a Wulli Wulli person is inherently linked to the identity and recognition of one’s descent from a named ancestor. 
[84]	In light of this, I am satisfied this part of the description is described sufficiently clearly in order to ascertain whether any particular person is a member of the group.
Conclusion 
[85]	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).
[86]	The application satisfies the condition of s 190B(3).
Identification of claimed native title – s 190B(4) 
[87]	For the reasons set out below, the application satisfies the condition of s 190B(4).
What is needed to meet this condition?
[88]	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. 
[89]	The description referred to in s 190B(4), and as required by s 62(2)(d) 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’.
[90]	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’. While 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)’.
[91]	I understand that in order to assess the requirements of this provision, I am confined to the material contained in the application itself.
Does the description of the native title rights and interests meet this condition?
[92]	Schedule E contains a description of the claimed native title rights and interests. I am satisfied that they are understandable and have meaning.
[93]	I have considered the description of the native title rights and interests claimed and find that the rights and interests are sufficient to fall within the scope of s 223 and are readily identifiable as native title rights and interests.

Factual basis for claimed native title – s 190B(5) 
[94]	For the reasons set out below, the application satisfies the condition of s 190B(5).
What is needed to meet this condition?
[95]	While 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.
[96]	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 claimants’ factual basis material.
[97]	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. 
[98]	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). 
[99]	The factual basis material is contained in Schedule F and the additional material provided by the applicant, including an anthropologist’s report dated 22 November 2017 and six affidavits from Wulli Wulli claimants.  
[100]	I proceed with my assessment of the sufficiency of this material by addressing each assertion set out in s 190B(5) below.
What is needed to provide a sufficient factual basis for s 190B(5)(a)?
[101]	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’;
•	that the predecessors of the group were associated with the area over the period since sovereignty; 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’.
What information has been provided in support of the assertion at s 190B(5)(a)?
[102]	The factual basis contains the following relevant information about the association of members of the native title claim group, and that of their predecessors, with the application area:
•	The application area is three areas of land and waters located in southern Queensland, with area 1 south of the Grevillea State Forest and north of the Delembra State Forest and areas 2 and 3 west of the Belmont State Forest.
•	Aboriginal people inhabited the region for at least 19,000 to 20,000 years. Archaeological work undertaken near the southern and northern regions of the application area shows early traditional Aboriginal occupation in the broader region, including rock shelters with art, stone artefact scatters, a quarry/knapping site, two ochre sources, shell scatters and scarred trees.
•	Effective sovereignty of the claim area occurred around the mid-1840s to early 1850s.
•	Linguistic and ethno-historical records establish that the Wulli Wulli predecessors were associated with a wide area that encompasses the application area. 
•	Early records and ethnographic works, including by early observers and contemporary ethnographic and anthropological experts, associate parts of the claim area with the native title claim group.
•	In 1844, explorers observed a burial campsite and shell middens, which showed Aboriginal inhabitation of the region. In 1845, explorers encountered Aboriginal people in the region who had food, sang and their items had branding ‘with fantastical figures and signs, all of which were representations or memorials of some ancient custom’.
•	Further occupation and expeditions in the 1850s show the predecessors of the claim group at the central and southern regions of area 1. 
•	In a letter from 1907, the Wulli Wulli People were associated with a station around the eastern region of area 1.
•	The presence of the Wulli Wulli people in the southern region of area 1 in the early twentieth century due to their employment in the pastoral industry. 
•	Of relevance to the association of some of the apical ancestors identified in Schedule A and their descendants, the factual basis includes the following information:
-	Alec Barney was well known to pastoralists who held property near the southern region of area 1. He was born around 1872, possibly around the southern region of area 1, and died around that area in 1932. Two of his daughters were married near the southern boundary of area 1. Alec Barney and his wife lived at various locations throughout Wulli Wulli country, including the northern region of area 3 in 1923. Descendants of this apical ancestor remain connected to the central and southern regions of area 1.
-	Wonga, daughter of Tommy, was born around the central region of area 1. She married Ernest Pope, the son of Ginelene, around 1886-7 near the southern or eastern region of area 3. They had six children and one of their daughters was recorded as living in the northern region of area 3 in 1970 and was also described as the ‘Queen of the Dawson River Tribe’, which runs through the western region of areas 2 and 3. Their son worked at a station in the central region of area 1 for a long period. Another daughter lived in the northern region of area 3 and her grandson grew up there as well. He learnt from his grandmother and uncles that that area is Wulli Wulli country.
-	Jack Hornet Senior was born around 1857. His son was born around 1883 proximate to the western boundary of area 1 and worked near the southern region of area 1. He died near the southern region in 1951. Jack Hornet Senior’s son and grandson passed down to their relatives some Wulli Wulli history of the application area, in particular their connections to the southern region of area 1.
-	Fanny Joyce was born around 1886-7 near the southern region of area 1 and was married in 1924 in that region. She and her husband moved from the eastern region of area 1 to proximate the southeastern boundary of area 2.
-	Jessie Fuller and her family may have been at a location in the southeastern region of area 2 or had an association with this area. Some of her children were born near the southern region of area 1 in the late 1800s. One of her daughters was married near the southern region in 1904.
-	Tilly’s son, Harry Blucher was born about 1892 around the southern region of area 3 and eastern region of area 2. He was married near the southern region of area 1 in 1914.
-	Husband of Mergwin Blay was well-known on the Burnett and was at a location in the central region of area 1 in about 1883. 
•	Current members of the Wulli Wulli People are part of one or more cognatic descent groups that comprise the native title claim group and can trace their descent from the apical ancestors identified in Schedule A.
•	Current claim group members say that they have always regarded the application area as Wulli Wulli country because they have been told this by respected older Wulli Wulli people.  They have also been told that these areas are where the Wulli Wulli People have rights to live, hunt, call their own, and be there in safety without requiring permission from any other Aboriginal group to be there and use the resources. 
•	Current claimants and their predecessors were born on or near the claim area, and either live on or have lived on or near the claim area in towns and communities around northeastern, eastern and southern regions of area 1, the eastern region of area 2, and the northern and southern regions of area 3.
•	Current claimants and their predecessors lived and worked on pastoral properties, reserves and camps in or near the northern, central and southern regions of area 1, and the southern regions of areas 2 and 3.
•	Senior members recall their immediate predecessors living, working, hunting and fishing throughout the claim area such as around the western regions of areas 2 and 3, southern region of area 3, and northern eastern and southern regions of area 1.
•	The claim group members continue to have knowledge of sacred sites in the area, such as in the northern region of area 3 and southern region of area 1, which they have learnt from their parents and other older relatives. They also know of scarred trees, cave paintings and bora rings in the central region of area 1 and speak of their obligation to protect these places.
•	The claimants have been taught traditional laws and customs by their parents and older relatives such as about their land, its resources, and all things belonging to their ancestors. They teach these traditional laws and customs to their descendants so that the laws and customs are passed from generation to generation.
Is the factual basis sufficient to support the assertion at s 190B(5)(a)?
Is there a sufficient factual basis relating to the relationship members of the claim group have in common in connection with the land?
[103]	For the purposes of this condition, I understand that the Registrar is required ‘to address the relationship which all members claim to have in common in connection with the relevant land’. In my view, this criterion relates to the ‘alleged facts [supporting] 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)’. 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 native title claim group have with their country, which is both of a physical and spiritual nature. The factual basis reflects the knowledge claim group members have of their traditional land and waters including significant sites and places of historical significance to their ancestors.
Does the factual basis show the history of the association the claim group has, and previously had, with the area?
[104]	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. The factual basis contains references to the presence of the predecessors of the apical ancestors within the application area prior to the date of effective sovereignty, which I understand to have occurred in the mid-1840s to early 1850s. For instance, apical ancestor Alex Barney was born around 1872 around the application area, which suggests his parents were born around the time of effective sovereignty. He and his wife lived at various locations throughout the application area and two of their daughters were married around the application area. His current descendants remain connected to certain parts of the application area. The descendants of the other apical ancestors continue to use and occupy the application area, including working, hunting and residing in the area.
Is there a sufficient factual basis that the association both past and present relates to the area as a whole?
[105]	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 some of the apical ancestors, their children and other descendants were born, resided, worked, married or were otherwise connected to the southern, central and western regions of area 1, southeastern and eastern regions of area 2 and northern and southern regions of area 3. Current claim group members and their predecessors were born, live or lived, or worked in or around the northern, central and southern regions of area 1, the eastern and southern regions of area 2, and the northern and southern regions of area 3. Senior members recall their immediate predecessors living, working, hunting and fishing throughout the claim area such as around the western regions of areas 2 and 3, southern region of area 3, and northern, eastern and southern regions of area 1. The claimants are also aware of significant sites in the northern region of area 3 and central and southern regions of area 1.
[106]	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’. 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. 
Decision 
[107]	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). 
What is needed to provide a sufficient factual basis for s 190B(5)(b)?
[108]	The definition of ‘native title rights and interests’ in s 223(1)(a) provides 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’.
[109]	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;
•	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’;
•	the law or custom has been passed from generation to generation of a society, but not merely by word of mouth;
•	those laws and customs have been acknowledged and observed without substantial interruption since sovereignty, having been passed down the generations to the claim group.
[110]	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 demonstrates the existence of a pre-sovereignty society and identifies the persons who acknowledged and observed the laws and customs of the pre-sovereignty society;
•	that if descent from named ancestors is the basis of membership to the group, the factual basis demonstrates some relationship between those ancestral persons and the pre-sovereignty society from which the laws and customs are derived; and
•	that the factual basis contains 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).
What information has been provided in relation to the society?
[111]	The identification of a pre-sovereignty society or a society that existed prior to effective sovereignty of the application area is relevant to my assessment of the assertion at s 190B(5)(b). In particular, I am of the view that identification of such a society is necessary to support the assertion of a connection between that society and the apical ancestors as well as a connection with the current native title claim group. I consider the following asserted facts to be relevant to my consideration of whether the factual basis is sufficient to support the existence of such a society:
•	The pre-sovereignty society in the application area was comprised of members of discrete landholding groups associated with the area who were most likely Waka-Gabi Language speakers, namely speakers of linguistic varieties known today as ‘Wuli-Wuli, Barunggam, Waga-Waga and Gureng-Gureng’. These speakers were likely to be part of small local groups as well as members of the larger formations such as Language-Named Groups like Wulli Wulli. The members of the smaller and larger Wulli Wulli groups more probably included the forebears of the apical ancestors of the current claimants who identify themselves as members of the landholding group known as the Wulli Wulli People.
•	The native title claim group and the neighbouring groups constitute a regional society with shared laws and customs about social organisation, recruitment of members, authority and decision making, spiritual beliefs, regulating access by outsiders, intramural allocation of rights, and the transmission of traditional knowledge.
•	Members of the society observed a regional system of laws and customs about territorial ownership and responsibilities, membership of landholding, social and totemic groups, transmission of knowledge about the landholding group’s property such as its area, resources, people and religious sites, acquisition of property, and religious and spiritual beliefs in the creation beings, dreaming beings and other spirits that inhabited the land. Social relations between members of territorial groups were organised according to their affiliation to the matrimoieties and sections of a system of social organisation. Affiliations with regional totemic matri-clans established links that connected the region’s inhabitants to each other and the totemic world. Members had core proprietary/beneficial rights in relation to the territory of the landholding group to which they were affiliated and to particular places and resources within that group’s area. These core rights included occupation and economic rights, control and management rights, rights concerned with speaking for country and maintaining the cultural estate, and rights to determine membership of the landholding group and resolve disputes among members.
•	Under the traditional laws and customs of the regional society, the claim group are the landholding group for the application area and identify with the socio-linguistic label ‘Wulli Wulli’. By those laws and customs, the claim group has rights to possess, occupy, use and enjoy the claim area and its natural resources. Such rights are conferred along with associated responsibilities to preserve and protect the claim area, and regulate the access, use and enjoyment of it by others.
•	The traditional laws and customs of the claim group are those of the apical ancestors and extend to neighbouring groups who are also part of the broader regional society.
What information has been provided in relation to the traditional laws and customs? 
[112]	The factual basis contains the following relevant information about the traditional laws and customs acknowledged and observed by the native title claim group.
[113]	The assertions by the claim group of rights and interests in the application area derive from traditional laws and customs that existed at the time of effective sovereignty. These laws and customs relate to membership of the landholding group, access to and use of the land and its resources, the care and management of the land and its resources and the regulation of members’ behaviour/disputes. The factual basis indicates that there has been no change since pre-sovereignty in the basic beliefs that underlie these particular laws and customs. The anthropological material makes reference to current claimants feeling safe and welcome when in the application area. The claimants believe that their identification with their ancestral land, spirits, waters and materials, ensures their safety and wellbeing of their country is derived from their apical ancestors. The claimants are taught this by their parents, grandparents, aunts and uncles.
[114]	The native title claim group continue to follow a landholding system where rights to country and those who are entitled to hold a proprietary/beneficial right to country is based on connection to a parent or a grandparent who is recognised as descended from an ancestor for the group.
[115]	The claimants continue to have a spiritual connection to country and observe spiritual beliefs and practices relating to ancestral being and spirits, including the creation beings who created the mountains and rivers of the claim area. They believe that such beings protect the claim area, particularly places of spiritual significance from harm caused by outsiders; monitor observance of the traditional laws and customs by the claim group; formed the geography of the claim area; and continue to be present in the claim area. The claim group members learn that certain places must be approached with respect and that the ancestral beings who inhabit the country should be informed when they are visiting certain places or introducing people to the area. They perform specific ceremonies to maintain their ancestral connection and enhance the wellbeing of the community including by performing spiritual dances and singing sacred songs. The claimants also continue to follow burial rites and 
conduct ceremonies such as smoking ceremonies to keep bad spirits away. The claim group members learn from their parents about their special connections to native birds and animals such as reading their behaviour to convey a message. They continue to know what their totems are and also speak some language.
[116]	The claimants continue to uphold traditional beliefs and practices in relation to the use of the traditional resources of the land and waters, and the care and management of its sites. For instance, the claimants are shown by their older brothers, uncles and other relatives how to hunt on Wulli Wulli country and are taught what to eat and where to find it. In addition, the claim group members freely move around their country and hunt and fish without fear that the ancestral spirits will punish them. They also refer to their right to speak for country which includes the right to care for its cultural heritage and the land. They teach others how to respect and care for its many artefacts and special places. 
[117]	Knowledge of traditional laws and customs have been passed from generation to generation through parents, grandparents and other relatives. For instance, claimants learn from their parents and older relatives about significant sites and are taught the proper way to approach sites or places where they might find signs of ancestral presence. The claimants continue to teach this knowledge to their children.
[118]	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).
Is the factual basis sufficient for the assertion of s 190B(5)(b)?
Does the factual basis address the identity of a pre-sovereignty society for the area?
[119]	My understanding of the factual basis material is that the pre-sovereignty society encompasses a wide area of land which is held at a localised level by various groups, including the Wulli Wulli People. I understand that these landholding groups speak a linguistic variety of the Waka-Gabi Language and were linked to each other and the totemic world through regional totemic matri-clans. Members of the society observed a regional system of laws and customs about territorial ownership and responsibilities, membership of landholding, social and totemic groups, transmission of knowledge in the use, care, and preservation of the landholding group’s property, and religious and spiritual beliefs in the creation beings, dreaming being and other spirits that inhabited the land.
[120]	The factual basis indicates that the Wulli Wulli country is situated within this society and their traditional laws and customs are said to be derived from it. In my view, within this society, the rights and interests in land that are asserted to be held by the members of the native title claim group are based on regionally held and practiced laws and customs. Relevant to this proposition, I note the observations of the Court that:
[i]t is conceivable that the traditional laws and customs under which the rights and interests claimed are held might, in whole or in part, be also traditional laws and customs of a wider population, without that wider population being a part of the claim group [emphasis added]. 
[121]	The factual basis reveals that the laws and customs currently observed and acknowledged by the claim group are based on, amongst other things, spiritual beliefs and observance of laws relating to land tenure and traditional usage of the resources of their land and waters. The content of the traditional laws and customs is said to have been passed down to the current Wulli Wulli members of the native title claim group through the preceding generations.  
Does the factual basis address the links between the pre-sovereignty society, the claim group and their apical ancestors?
[122]	In my view, the factual basis demonstrates that some of the ancestors were living within the application area, or were amongst the generation born to those who were living within the application area, at the time of effective sovereignty. In this sense, I understand that the information supports the assertion that the predecessors of apical ancestors were either born or living in and around the application area around the time of effective sovereignty. From the factual basis, I understand the current claim members are descendants of these ancestors.
Is the factual basis sufficient to support the ‘traditional laws and customs’ assertion?
[123]	I am 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 native title claim group continue to observe a landholding system where proprietary and beneficial rights are based on connection to a parent or grandparent who is recognised as descended from an ancestor of that group.
[124]	The factual basis contains some information which speaks to the way the members of the claim group continue to perform traditional practices such as camping, hunting, fishing and gathering of natural resources. They speak of their obligation to care and manage sites on country and to teach others how to respect and care for its many artefacts and special places. 
[125]	The factual basis also contains references to current observance and acknowledgement of laws and customs of a spiritual nature. The claimants continue to have knowledge of the creation beings that created the mountains and rivers of the claim area and of significant spiritual places. They speak of their responsibility to protect those places. They approach 
spiritual places with respect and inform the spirits and the ancestral beings in those places about their presence or introduce other people to the area. They perform spiritual dances and sing sacred songs to maintain their ancestral connection as well as to enhance the wellbeing of the community. The claimants also continue to perform burial rites and smoking ceremonies and have knowledge of their totems. 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.
[126]	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, from parents, grandparents and other relatives, by word of mouth and practice, to the current members of the claim group, and have been acknowledged by them without substantial interruption. The asserted facts state, for instance, that claimants have knowledge of spiritual and ancestral beings at particular places and know how to approach those places, they know how to hunt and fish on country, know how to read messages conveyed through birds and animals, know their totems, speak some language and they continue to care for country. Given the level of detail in the continued acknowledgement and observance of the group’s cultural traditions and that the granddaughter of apical ancestors Tommy (father of Wonga Pope) and Ginalene (mother of Ernest Pope) taught her grandson about Wulli Wulli country, I infer that the 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 effective sovereignty.
Decision 
[127]	I am satisfied that the factual basis provided is sufficient to support the assertion described by s 190B(5)(b).
What is needed to provide a sufficient factual basis for s 190B(5)(c)?
[128]	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.
[129]	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.
[130]	I also understand that if 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’. 

Is the factual basis sufficient for the assertion of s 190B(5)(c)?
[131]	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. 
[132]	The factual basis states that claimants have been taught by their parents and older relatives about their land, its resources, and all things belonging to their ancestors and that they teach these traditional laws and customs to their descendants so that the laws and customs are passed from generation to generation. The claim members learn about significant sites in the application area and the proper way to approach sites where they may find visual signs of ancestral presence, which they teach to their children. The claimants also continue to uphold traditional beliefs and practices in relation to the use of the traditional resources of their land and waters, and the care and management of its sites. The affidavits of the claimants also contain information showing how they learnt laws and traditional practices from their parents, grandparents and other relatives.
[133]	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 the native title claim group 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.
Decision
[134]	I am satisfied that the factual basis provided is sufficient to support the assertion described by s 190B(5)(c).
Prima facie case – s 190B(6)
[135]	As set out below, I consider that some of the claimed rights and interests have been established on a prima facie basis. Therefore, the claim satisfies the condition of s 190B(6).
What is needed to meet this condition?
[136]	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’. 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’. 
[137]	I note that this section is one that permits consideration of material that is beyond the parameters of the application.   
[138]	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). 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.   
[139]	I also understand that a claimed native title right and interest can be prima facie established if the factual basis is sufficient to demonstrate that it is possessed pursuant to the traditional laws and customs of the native title claim group.
[140]	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’. I also note that the phrase ‘in relation to’ is ’of wide import’.  Having examined the native title rights and interests set out in Schedule E of the application they are, prima facie, rights or interests ‘in relation to land or waters.’ 
[141]	I consider that Schedule B of the application sufficiently addresses any issue of extinguishment, for the purpose of the test at s 190B(6). 
[142]	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).
Which of the claimed native title rights and interests can be established on a prima facie basis?
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 claim group claims the right to possess, occupy, use and enjoy the lands and waters of the application area as against the whole world, pursuant to the traditional laws and customs of the claim group.
[143]	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]’. 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’. 
[144]	In Griffiths, the Full Court, while 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]. 
[145]	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. 
[146]	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. 
[147]	The factual basis is such that at the time of effective sovereignty, permission from landholders was required to access territories and use the resources in an area. It is asserted that those with rights to the area can move freely without fear that the ancestral spirits will punish them. In addition, those with the bloodlines, have the right to speak for that country. One claimant speaks of the spiritual presence on country that live in and protect Wulli Wulli country. If someone does the wrong thing, such as going somewhere at the wrong time or taking something from a special place, the spirits will make that person sick. That claimant says he knows of an outsider who ended up in hospital for doing the ‘wrong thing’. He says they ‘have the right to say who can come onto and do things’ on Wulli Wulli country and that they ‘have to make sure that other people do not damage or take things from Wulli Wulli country or [they, the Wulli Wulli people] might get sick’. 
[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 from harm and injury and from country harming others. Members of the claim group have rights to country on the basis of descent and therefore are able to speak for that country. 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 claim group claims the nonexclusive rights to: 
a. live and be present on the application area; 
b. take, use, share and exchange Traditional Natural Resources for personal, domestic and non-commercial, communal purposes; 
g. light fires for domestic purposes including cooking but not for the purposes of hunting or clearing vegetation; 
i. In relation to Water, take and use; 
(1) Traditional Natural Resources from the Water for personal, domestic and non-commercial communal purposes; and 
(2) for personal, domestic and non-commercial, communal purposes.
[150]	The factual basis shows that the claimants have detailed knowledge of the boundaries of country and how they are associated with particular areas through their ancestors. They speak of their ancestors camping along creeks in their country and other predecessors working at stations that were located in the country they were associated with. Some claim group members have lived and/or continue to live and reside in places associated with their ancestor. 
[151]	Claim group members who grew up in the application area have hunted, fished, harvested, collected and used, taken and enjoyed the natural resources of the area and continue to do so. They speak of learning how to hunt from the older people. One claimant says his family would often gather bush tucker, fish in creeks and rivers on country and his father would sometimes bring bush tucker, like kangaroo and wallaby, home for the family to eat. Another claimant says that he goes to a particular place on country to hunt echidna, which he shares with relatives.
[152]	The claimants learn from their predecessors how to use fire to cook bush tucker and to keep warm while camping like their ancestors did. They also use fire to smoke members, their children and their home for cleansing and keeping bad spirits away. The claim group members also continue to have knowledge as to how to use water properly, such as the best time to catch certain fish and how to stun fish in waterholes in order to catch them. I also understand the claimants use water for drinking while camping and residing on country.
[153]	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.
c. conduct burial rites; 
d. conduct ceremonies; 
[154]	The factual basis indicates that the claim members continue to be buried within or near the application area and perform burial rites such as performing a ceremonial dance at the funeral, marking graves with plants and flowers, cleaning and maintaining graves and speaking to the spirits of the deceased person. The claimants continue to perform ceremonies such as singing sacred songs and performing traditional dances, welcome to country ceremonies, and smoking ceremonies for cleansing and keeping bad spirits away.
[155]	These rights are prima facie established pursuant to traditional laws and customs of the claim group.
e. teach on the area about the physical and spiritual attributes of the area; 
[156]	The claimants learn from their parents and other older relatives about the physical and spiritual attributes of country, including the boundaries, significant sites and the rules and behavioural protocols at these sites such as informing the spirits of their presence and introducing people to the area, and teach this information to younger members.
[157]	I consider that this right is prima facie established under the traditional laws and customs of the native title claim group.
f. maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas from physical harm; 
[158]	The claim group members learn from their elders to value, protect and not disturb places of particular significant to the Wulli Wulli People and they speak of how they fulfil their responsibility.  
[159]	It is my view that the factual basis material prima facie establishes that this right is possessed under the traditional laws and customs of the native title claim group.
h. be accompanied into the claim area by non-claim group members being people required; 
(1) by traditional law and custom for the performance of ceremonies or cultural activities; and 
(2) to assist in observing and recording traditional activities on the claim area; and 
[160]	The asserted facts indicate that the claimants learn from their elders of their right and responsibility to introduce people who are not Wulli Wulli to the application area. They accompany their spouses to meetings where their spouse are not permitted to vote or talk, and they take friends to places on Wulli Wulli country after seeking permission from the spirits at those locations.
[161]	I consider this right is prima facie established under the traditional laws and customs of the claim group.
Physical connection – s 190B(7)
[162]	For the reasons set out below, the application satisfies the condition of s 190B(7).
What is needed to meet this condition?
[163]	This condition requires that 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, or previously had and would reasonably be expected to currently have a traditional physical connection with any part of the land or waters, but for certain things done. 
[164]	The Courts have 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’. 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’.   
[165]	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. 
Is there evidence that a member of the claim group has a traditional physical connection?
[166]	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 native title claim group acknowledge and observe the traditional laws and customs of the pre-sovereignty society. 
[167]	The factual basis contains relevant information that describe a traditional physical association of members of the claim group with the application area, including travelling over country, visiting sites, residing on country, camping, hunting, fishing and performing other practices within the application area. 
[168]	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.
No failure to comply with s 61A – s 190B(8)
[169]	As set out in my reasons below, 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).
[170]	Section 190B(8) requires that 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.
[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.
No native title determination application if approved determination of native title (s 61A(1))
[172]	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 this. It follows that the application is not made in relation to an area for which there is an approved determination of native title.
Claimant application not to be made covering previous exclusive possession over areas (s 61A(2))
[173]	Schedule B indicates that areas subject to a previous exclusive possession act are excluded from the application.
Claimant applications not to claim certain rights and interest in previous non-exclusive possession act areas (s 61A(3))
[174]	Schedule B states that exclusive possession is not claimed over areas which are subject to valid previous non-exclusive possession acts done by the Commonwealth or State of Queensland.
No extinguishment etc. of claimed native title – s 190B(9)
[175]	Section 190B(9) provides that the application and accompanying documents must not disclose, and the Registrar must not be aware of the matters set out in subparagraphs (a) to (c). 
[176]	The application satisfies the condition of s 190B(9), because it meets all of the three subconditions, as set out in the reasons below.
No claim made of ownership of minerals, petroleum or gas that are wholly owned by the Crown (s 190B(9)(a))
[177]	Schedule Q provides that the claim group does not claim ownership of minerals, petroleum or gas wholly owned by the Crown.
Exclusive possession is not claimed over all or part of waters in an offshore place (s 190B(9)(b))
[178]	Schedule P states that the application does not include a claim by the claim group to exclusive possession of all or part of an offshore place.
Native title rights and/or interests in the application area have otherwise been extinguished (s 190B(9)(c))
[179]	Schedule B states that the area covered by the application excludes land or waters where the native title rights and interests claimed have been otherwise extinguished.

End of reasons
End of document