Registration Decision

Application name	Pearl Gordon & Ors on behalf of the Malarngowem #2 Native Title Claim Group and State of Western Australia (Malarngowem #2)	
Name of applicant	Pearl Gordon, Bernard Stretch, Shirley Purdie, Rusty Peters, Mabel Peters, Gordon Barney, Mary Thomas, Queenie Malgil, Paddy McGinty	
Federal Court of Australia No.	WAD118/2019	
NNTT No.	WC2019/003	
Date of Decision	22 March 2019	

Claim not accepted for registration
I have decided the claim in the Malarngowem #2 application does not satisfy all the conditions in ss 190B–190C of the Native Title Act 1993 (Cth). Therefore the claim must not be accepted for registration.
For the purposes of s 190D(3), my opinion is that the claim does not satisfy ss 190B(5)–(7). It also does not satisfy ss 190C(3)–(4).

Katy Woods

Reasons for Decision
Cases cited
Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625 (Aplin) 
Corunna v Native Title Registrar [2013] FCA 372 (Corunna)
Gudjala People # 2 v Native Title Registrar (2008) 171 FCR 317; [2008] FCAFC 157 (Gudjala 2008)
Gudjala People #2 v Native Title Registrar [2009] FCA 1572 (Gudjala 2009)
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 Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; [2002] HCA 58 (Yorta Yorta)
Northern Territory of Australia v Doepel [2003] FCA 1384 (Doepel)
Sampi on behalf of the Bardi and Jawi People v State of Western Australia [2010] FCAFC 26 (Sampi FC) 
Strickland v Native Title Registrar [1999] FCA 1530 (Strickland) 
Wakaman People 2 v Native Title Registrar and Authorised Delegate [2006] FCA 1198 (Wakaman)
Ward v Northern Territory [2002] FCA 171 (Ward) 
Western Australia v Native Title Registrar (1999) 95 FCR 93; [1999] FCA 1591 (WA v NTR)

Background
[1]	This application was filed on behalf of the Malarngowem #2 native title claim group (claim group) on 1 March 2019. It covers an area of unallocated crown land identified as a portion of Lot 128 on Deposited Plan 39947, in the East Kimberley region of Western Australia. 
[2]	The Registrar of the Federal Court (Court) gave a copy of the application and accompanying affidavits to the Native Title Registrar (Registrar) of the National Native Title Tribunal (Tribunal) on 6 March 2019 pursuant to s 63 of the Native Title Act. This has triggered the Registrar’s duty to consider the claim under s 190A(1). 
[3]	This application is wholly overlapped by the Malarngowem native title determination application (WC1999/044) and I understand it has been filed to claim the benefit of s 47B of the Act, which provides the circumstances under which extinguishment of native title in areas of vacant crown land must be disregarded. 
[4]	If the claim in the application satisfies all the registration test conditions in ss 190B–190C, then the Registrar must accept the claim for registration. If it does not satisfy all the conditions, it must not be accepted for registration. I have decided the application does not satisfy all of the registration test conditions and my reasons on each condition follow below.
Information considered
[5]	I have considered the information in the application and note the applicant has not provided any other documents. There is no information before me obtained as a result of any searches conducted by the Registrar of state or Commonwealth interest registers, and the State of Western Australia (state government) has not supplied any information in relation to the application of the registration test. I consider it appropriate to have regard to information contained in a geospatial assessment and overlap analysis prepared by the Tribunal’s Geospatial Services, dated 12 March 2019 (geospatial report) and information available through the Tribunal’s geospatial database and the Register of Native Title Claims.
Procedural fairness
[6]	On 11 March 2019 an officer of the Tribunal wrote to the relevant minister of the state government advising that I would be relying on the information in the application for my decision, and should the state government wish to make any submissions, it should do so by 15 March 2019. No submissions were received from the state government. This concluded the procedural fairness process.
Section 190C: conditions about procedures and other matters
Information etc. required by ss 61–2 – s 190C(2): condition met
[7]	To meet s 190C(2), the Registrar must be satisfied the application contains all of the prescribed details and other information, and is accompanied by any affidavit or other document, required by ss 61–2. I am not required to undertake a merit assessment of the material at this condition. 
Section 61
[8]	I am satisfied the application contains the details required by s 61:
Section	Details 	Information	Result	
s 61(1)	Native title claim group has authorised the applicant	Part A(2), Schedule A and affidavits filed with application	Met	
s 61(3)	Name and address for service 	Part B	Met	
s 61(4)	Native title claim group named/described 	Schedule A	Met	
Section 62
[9]	I am satisfied the application contains the information required by s 62:
Section	Details 	Information	Result	
s 62(1)(a)	Affidavits in prescribed form	Affidavits filed with application 	Met	
s 62(2)(a)	Information about the boundaries of the area	Schedule B	Met: see reasons below	
s 62(2)(b)	Map of external boundaries of the area	Attachment C	Met	
s 62(2)(c)	Searches	Schedule D, Attachment D	Met	
s 62(2)(d)	Description of native title rights and interests	Schedule E	Met	
s 62(2)(e)	Description of factual basis 	Schedule F	Met	
s 62(2)(f)	Activities	Schedule G	Met	
s 62(2)(g)	Other applications	Schedule H	Met	
s 62(2)(ga)	Notices under s 24MD(6B)(c)	Schedule HA	Met	
s 62(2)(h)	Notices under s 29	Schedule I, Attachment I	Met	

Section 62(2)(a)
[10]	Section 62(2)(a) has two limbs, requiring information which enables the identification of:
(i)	the boundaries of the area covered by the application, and 
(ii)	any areas within the boundaries that are not covered by the application.
[11]	Schedule B provides a description of the boundaries of the area covered by the application, sufficient for s 62(2)(a)(i). There is no information in Schedule B or elsewhere in the application about any areas which are excluded, so I understand the entire area within the external boundaries is covered by the application. I do not consider that claiming the entire area in this way affects the application’s ability to meet s 62(2)(a)(ii), noting that provision only requires ‘any areas’ within the boundaries that are not covered by the application to be identified, rather than mandating that an application area must include such areas.
No previous overlapping claim group – s 190C(3): condition not met
[12]	To meet s 190C(3), the Registrar ‘must be satisfied that no person included in the native title claim group for the application (the current application) was a member of a native title claim group for any previous application’. To be a ‘previous application’:
(a)	the application must overlap the current application in whole or part;
(b)	there must be an entry for the claim in the previous application on the Register of Native Title Claims (the Register) when the current application was made; and
(c)	the entry must have been made or not removed as a result of the previous application being considered for registration under s 190A.
[13]	The geospatial report states, and my own searches confirm, the WAD43/2019 Malarngowem (WC1999/044) application entirely overlaps the current application. According to the Register, the claim in WAD43/2019 Malarngowem was accepted for registration under s 190A and entered onto the Register on 4 February 2000, and has not been removed. I therefore consider it is a ‘previous application’ as it meets the three conditions in s 190C(3). This means I must consider whether there are common claimants between the two applications.
[14]	Schedule O, which asks applicants whether any member of the native title claim group is also a member of any other claim group, states ‘[t]he members of the Malarngowem application (WAD43/2019) are the same members as in this application’. To confirm that there are common claimants, I have examined the Register extract for WAD43/2019 Malarngowem and note that particular members of the applicant in both claims have identical names. In addition, several of the apical ancestors in the current application are also named as ancestors in WAD43/2019 Malarngowem, including Biddy (Dirngorl), Lola Budbaria, Chinabi Kargoyn and Jungubany. Given these commonalities, I am not satisfied that no member of the claim group for the current application is not also a member of the WAD43/2019 Malarngowem claim group. This means s 190C(3) is not met.
Identity of claimed native title holders – s 190C(4): condition not met
[15]	To meet s 190C(4), the Registrar must be satisfied that either: 
(a)	the application has been certified by all representative Aboriginal/Torres Strait Islander bodies that could certify the application in performing its functions; or 
(b)	the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group.
[16]	Schedule R, which asks applicants to provide information about the certification of the claim and/or authorisation of the applicant by the members of the native title claim group, states ‘See section 62 affidavits signed by each member of the Applicant filed contemporaneously with this Form 1’. Based on this statement, and as no certificate from a representative Aboriginal/Torres Strait Islander body has been provided, I understand the application has not been certified and I must therefore assess the application against the requirements of s 190C(4)(b).
[17]	Following s 190C(4)(b) there is a note in the Act referring to the definition of ‘authorising the making of applications’ in s 251B, which reads as follows:
…for the purposes of this Act, all the persons in a native title claim group authorise a person or persons to make a native title determination application … and to deal with matters arising in relation to it, if:
(a)	where there is a process of decision–making that, under the traditional laws and customs of the persons in the native title claim group … must be complied with in relation to authorising things of that kind—the persons in the native title claim group … authorise the person or persons to make the application and to deal with the matters in accordance with that process; or 
(b)	where there is no such process—the persons in the native title claim group … authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision–making agreed to and adopted, by the persons in the native title claim group … in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.
[18]	Section 190C(5) states that if the application has not been certified under s 190C(4)(a), the Registrar cannot be satisfied that the condition in s 190C(4) is met unless the application:
(a)	includes a statement to the effect that the requirement in s 190C(4)(b) above has been met; and
(b)	briefly sets out the grounds on which the Registrar should consider that the requirement in s 190C(4)(b) above has been met.
[19]	I note French J’s comment that the insertion of the word ‘briefly’ in s 190C(5)(b) ‘suggests that the legislature was not concerned to require any detailed explanation of the process by which authorisation is obtained’.
[20]	The affidavits of the members of the applicant all depose the following:
1. I am a member of the native title claim group in the Malarngowem #2 native title determination application in the Federal Court of Australia.
2. I am a member of the Applicant.
3. I am authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to the application.
4. The process of decision-making which was complied with in authorising me and 10 (ten) other persons to make, and to deal with matters arising in relation to, the application at a meeting of the Malarngowem #2 native title claim group held at Warmun on 29-30 November 2018 was a process of decision-making agreed to and adopted at that meeting, whereby decisions were made by majority decision of the native title claim group by a show of hands. 
[21]	I consider that paragraphs 1–3 of the affidavits is a sufficient statement for the purposes of s 190C(5)(a), and paragraph 4 is sufficient for the purposes of s 190C(5)(b), which means s 190C(5) is met.
[22]	I have examined the contents of the application and am satisfied it contains no further information about the authorisation of the applicant. Based on the information in the affidavits, I understand a claim group meeting was held to authorise the applicant, using an agreed and adopted decision-making process, which is one of the methods of authorisation stipulated in s 251B. However there is no information before me about either the notice or the conduct of the claim group meeting to enable me to consider whether ‘all the persons in a native title claim group’ have authorised the applicant as required by s 251B. 
[23]	I also understand that where an applicant is relying on s 190C(4)(b), I must be satisfied of the ‘fact of authorisation’ by all members of the native title claim group. I note O’Loughlin J’s theoretical questions about the meeting at which the applicant was authorised in the circumstances of the case of Ward:
Who convened it and why was it convened? To whom was notice given and how 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? 
[24]	His Honour found that the substance of the above questions must be addressed. Based on the information in the application, I am not satisfied the above questions have been addressed, that all members of the native title claim group were given every reasonable opportunity to participate in the decision-making process, or that they have authorised the applicant to make the application and deal with all matters arising in relation to it. This means s 190C(4)(b) is not met.

Section 190B: conditions about merits of the claim
Identification of area subject to native title – s 190B(2) condition met
[25]	To meet s 190B(2), the Registrar must be satisfied the information and map contained in the application as required by ss 62(2)(a)–(b) are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters. The two questions for this condition are whether the information and map provides certainty about: 
(a)	the external boundary of the area where native title rights and interests are claimed; and 
(b)	any areas within the external boundary over which no claim is made. 
[26]	 Schedule B describes the application area as:
That portion of Lot 128 on Deposited Plan 39947 that falls north of a line commencing at the south western corner of Lot 96 on Deposited Plan 28264 and extending west to the prolongation northerly of the western boundary of Lot 76 on Deposited Plan 238428 (at approximately Longitude 128.245639° East Latitude 17.127004° South). 
[27]	Schedule C refers to Attachment C which contains a scanned colour A3 map prepared by the Tribunal’s Geospatial Services titled ‘Malarngowem #2’ and dated 11 January 2019. It includes: 
1.	The application area depicted in bold dark-blue outline; 
2.	Tenure, depicted as displayed in the legend, labelled with pastoral lease number and name, reserve number and name, and lot on plan as appropriate; 
3.	General topographic background; 
4.	Scalebar, coordinate grid (GDA94); and 
5.	Notes relating to the source, currency and datum of data used to prepare the map. 
(a)	External boundaries
[28]	The assessment in the geospatial report is that the description and map are consistent and identify the application area with reasonable certainty. Having considered the information in Schedule B and Attachment C, I agree with the assessment in the geospatial report and am satisfied that the external boundary of the application area can be identified with reasonable certainty for the purposes of s 190B(2).
(b)	Areas within the external boundary over which no claim is made
[29]	As discussed above at s 190C(2), I consider that the failure to provide information about any areas within the external boundary not covered by the application does not mean the application does not meet s 62(2)(a), rather it leads me to conclude that the entire area within the external boundary is claimed. This same reasoning applies in relation to s 190B(2): I can conclude that the description of the boundaries provided in Schedule B identifies the area where native title is claimed, being all of the area within the external boundary. 
Conclusion 
[30]	I am satisfied the information and map contained in the application identify with reasonable certainty the ‘particular land or waters’ where native title rights and interests are claimed, such that s 190B(2) is met. 
Identification of the native title claim group – s 190B(3) condition met
[31]	To meet s 190B(3), the Registrar must be satisfied that: 
(a)	the persons in the native title claim group are named in the application; or 
(b)	the persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group. 
[32]	I note I am not required to do more than make ‘an assessment of the sufficiency of the description of the group for the purpose of facilitating the identification of any person as part of the group’. 
[33]	Schedule A states: 
1.	The Native Title Claim Group are those Aboriginal people who:
(a)	are related through filiation (including by adoption) to one of the Malarngowem Apical Ancestors who held rights and interests in one of the local estate countries comprising the claim area; or
(b)	are affiliated to a Malarngowem Apical Ancestor and who have spirit conception and/or birth sites in one of the local estate countries in the claim area; or
(c)	are recognised by the persons described above as:
(i)	holding rights and responsibilities for certain songs and ceremonies which make reference to important sites in the claim area; or
(ii)	holding rights and interests in one of the local estate countries in the claim area under traditional law and custom. 
2.	The Malarngowem Apical Ancestors are: [list of 32 people].
[34]	From the description in Schedule A, I understand a person must meet the requirements of paragraph 1(a), 1(b) or 1(c) in order to qualify for membership of the claim group.
[35]	I consider the description of the claim group provides a clear objective starting point, being descent from the named ancestors listed in paragraph 2 who hold rights and interests in one of the local estate countries comprising the claim area. That list provides a basis from which the people who qualify for group membership as descendants of the apical ancestors under paragraph 1(a) can be determined. This could be done through genealogical research.
[36]	I consider the people who qualify for group membership under paragraph 1(b) could be ascertained through two stages of factual enquiry. Firstly, enquiries would need to be made as to a person’s ‘affiliation’ to a Malarngowem apical ancestor. I understand ‘affiliation’ means a connection or an association with a Malarngowem apical ancestor, as opposed to ‘filiation’ in paragraph 1(a) which I understand refers to a person’s family or descendants. The second stage of enquiry would be to determine the spirit conception or birth site of the person and whether that site falls within the claim area. Individuals who meet both criteria would satisfy the membership requirements of paragraph 1(b), noting that paragraph requires affiliation with a Malarngowem apical ancestor and a spirit conception and/or birth sites in one of the local estate countries in the claim area. Any requirements as to the nature and extent of a person’s connection or association with a Malarngowem ancestor I consider can also be determined by factual enquiry and does not mean the group has not been described sufficiently.
[37]	Once the people who qualify under paragraph 1(b) are determined, they, along with the people who have qualified under paragraph 1(a) could assist with identifying the people who qualify under paragraph 1(c), as the description in that paragraph requires ‘recognition’ by the two preceding groups. I consider there is no objective starting point in ascertaining ‘recognition’, it is a subjective criterion. I note that the Court has previously held that membership of a native title claim group must be based on group acceptance, that being inherent in the nature of a society. I note in particular the Full Court’s comments in Sampi FC, that ‘in determining whether a group constitutes a society in the Yorta Yorta sense is the internal view of the members of the group – the emic view. The 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’. Schedule F asserts that the claim group’s rights to the claim area are in accordance with traditional law and custom, which the claim group continues to acknowledge and observe. I therefore consider it is with reference to those laws and customs that the people who qualify under paragraph 1(c) would need to be ‘recognised’ as members of the claim group by the members of the two preceding groups.
[38]	I consider the description in Schedule A will allow for the people who qualify for group membership under paragraphs 1(a), 1(b) or 1(c) to be ascertained at the relevant time. I am therefore satisfied that the persons in the group are described sufficiently clearly and so s 190B(3)(b) is met. 
Identification of claimed native title – s 190B(4) condition met
[39]	To meet s 190B(4), the Registrar must be satisfied that the description contained in the application as required by s 62(2)(d) is sufficient to allow the claimed native title rights and interests to be identified. 
[40]	I understand it is open to me to read Schedule E ‘as a whole’ so there is ‘no inherent or explicit contradiction’. I have not considered whether the rights and interests claimed can be considered ‘native title rights and interests’ in accordance with s 223 as I consider that is part of the task at s 190B(6), where I must decide whether each of the claimed rights can be established on a prima facie basis.
[41]	Schedule E lists the native title rights and interests claimed under two headings: ‘Native title where traditional rights are wholly recognisable’ and ‘Native title where traditional rights are partially recognisable’.
[42]	Under the first heading, it states that the rights claimed apply to every part of the claim area where there has been no extinguishment of native title or where any extinguishment is to be disregarded. The rights claimed are described as ‘the right of possession, occupation, use and enjoyment of land and waters as against the whole world’.
[43]	Under the second heading, it states that the rights claimed apply to every part of the claim area where the description under the first heading does not apply. Three rights are listed which are described as the rights:
(a)	to have access to, remain in and use the land and waters;
(b)	to access and take for any purpose the resources of the land and waters; and
(c)	to protect places, areas and things of traditional significance on the land and waters. 
[44]	Based on the information in paragraph 5 of Schedule E, those rights under the second heading do not confer possession, occupation, use and enjoyment to the exclusion of all others, or a right to control the access of others. I therefore consider the three rights under the second heading to be ‘non-exclusive’.
[45]	Paragraphs 6 and 7 describe the limitations on the rights claimed, including that they are subject to the laws of Western Australia and the Commonwealth and do not exist in minerals or petroleum. 
[46]	Having considered the wording of Schedule E, I am satisfied the description is sufficient to understand and identify all the claimed rights and interests, which means s 190B(4) is met.
Factual basis for claimed native title – s 190B(5) condition not met
[47]	To meet s 190B(5), the Registrar must be satisfied there is sufficient factual basis to support the assertion that the claimed native title rights and interests exist. In particular, the factual basis must support the following assertions: 
(a)	that the native title claim group have, and the predecessors of those persons had, an association with the area;
(b)	that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; and
(c)	the native title claim group have continued to hold the native title in accordance with those traditional laws and customs. 
[48]	I understand my task is to assess whether the asserted facts can support the existence of the claimed native title rights and interests, rather than determine whether there is ‘evidence that proves directly or by inference the facts necessary to establish the claim’. I also note French J’s view that ‘[t]he provision of material disclosing a factual basis for the claimed native title rights and interests, for the purposes of registration, is ultimately the responsibility of the applicant. It is not a requirement that the Registrar or [her] delegate undertake a search for such material’. As such I have not undertaken any searches for external material to support the applicant’s claim.
[49]	Schedule F states:
The native title rights and interests are those of, and flowing from, the exclusive right to possession, occupation, use and enjoyment of the land and waters pursuant to the traditional laws and customs of the claim group based upon the following facts:
a)	the native title claim group and their ancestors have, prior to and since the assertion of British sovereignty possessed, occupied, used and enjoyed the claim area;
b)	such possession, occupation, use and enjoyment has been pursuant to and under the laws and customs of the claim group, comprising rights and interests in land and waters which the traditional laws and customs vest in members of the native title claim group on the basis of descent from ancestors connected to the area, including descent through adoption in accordance with traditional law and custom;
c)	such traditional laws and customs have been passed down from older generations to younger generations by traditional teaching, through the generations of persons comprising the native title claim group preceding the present generations to the present generations of persons comprising the native title claim group;
d)	the native title claim group continues to acknowledge and observe those traditional laws and customs;
e)	the native title claim group by those laws and customs have continuing connection with the land and waters in respect of which the claim is made; and
f)	the rights and interests are capable of being recognised by the common law of Australia.

[50]	Schedule G states:
The native title claim group have continuously carried out on the land and waters all such activities as are contemplated by their rights and interests as and when they choose, informed by their rights and obligations under traditional law and custom including:
a)	accessing and using the land and waters;
b)	controlling the access and use of the claim area by others;
c)	accessing and taking the resources of the land and waters; and
d)	protecting places, areas and things of traditional significance on the land and waters.

[51]	I have examined the application and I consider the information in these schedules is the extent of the factual basis material before me.
[52]	I consider that the material does not provide a sufficient factual basis to support an assertion that the predecessors of the group were associated with the application area over the period since sovereignty. There are no references to any locations inside the application area and no information about any association of the predecessors with the application area other than the general statement regarding their occupation of the area in Schedule F. In my view, there is also insufficient factual basis to demonstrate the association the claim group currently has with the application area. I consider that the information provided is of a very general nature and has no ‘geographical particularity’, which means s 190B(5)(a) is not met. 
[53]	Relevant to my assessment of the assertion at s 190B(5)(b) is the identification of a pre-sovereignty society, acknowledging and observing normative laws and customs. In my view, there is an insufficient factual basis to support an assertion that a pre-sovereignty society existed in the application area. I consider the broad statements in Schedule F to be ‘at a high level of generality’. I also consider there is insufficient factual basis to demonstrate any relationship between the ancestors of the claim group and a pre-sovereignty society.
[54]	Also relevant to my assessment of the assertion at s 190B(5)(b) is the identification of the laws and customs of the claim group and how they are ‘traditional’, that is, how the current laws and customs of the claim group are rooted in the laws and customs of a pre-sovereignty society. I am not satisfied the information in the application supports an assertion that laws and customs exist in the application area, either in relation to a pre-sovereignty society or since that time. This means I cannot be satisfied that any such laws or customs could be considered ‘traditional’ and so s 190B(5)(b) is not met.
[55]	Meeting the requirements of s 190B(5)(c) relies on whether there is a factual basis supporting 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. Because I consider the factual basis is not sufficient to support the assertion of the existence of traditional laws and customs at s 190B(5)(b), I cannot be satisfied that the factual basis is sufficient to support the assertion of the continuity of traditional laws and customs, which means s 190B(5)(c) is not met.
[56]	I am therefore not satisfied the factual basis on which it is asserted that the claimed native title rights and interests exist is sufficient to support any of the assertions of s 190B(5)(a)–(c), which means s 190B(5) is not met.
Prima facie case – s 190B(6): condition not met
[57]	To meet s 190B(6), the Registrar must consider that, prima facie, at least some of the native title rights and interests claimed can be established. According to s 223(1), a ‘native title right or interest’ is one that is held under traditional laws acknowledged and traditional customs observed by the native title claim group. As discussed above at s 190B(5)(b), I am not satisfied there is information in the application to support the assertion that such traditional laws and customs exist. This means the claimed rights and interests cannot be shown to be held in accordance with traditional laws and customs, and thus cannot be established on a prima facie basis as ‘native title rights and interests’. 
[58]	In addition, there must be information within the application which talks about each of the individual rights claimed. I am not satisfied the application contains sufficient information of this type. I therefore consider none of the claimed rights and interests have been established on a prima facie basis, which means s 190B(6) is not met.
Traditional physical connection – s 190B(7): condition not met
[59]	To meet s 190B(7), the Registrar must be satisfied that at least one member of the native title claim group:
(a)	currently has or previously had a traditional physical connection with any part of the land or waters covered by the application; or
(b)	previously had and would reasonably have been expected currently to have such a connection but for things done by the Crown, a statutory authority of the Crown or any holder of or person acting on behalf of the holder of a lease, other than the creation of an interest in relation to land or waters.
[60]	I note this condition requires the material to satisfy the Registrar of particular facts such that evidentiary material is required, and requires that the physical connection is in accordance with the traditional laws and customs of the claim group.
[61]	No information has been provided at Schedule M, which asks the applicant for information about any traditional physical connection that a claim group member has with the application area, which means that my consideration is limited to the information in the other schedules, particularly Schedules F and G, quoted above. I consider the information in these schedules is too general to satisfy the requirements of s 190B(7). In addition, given my finding at s 190B(5)(b), that there is insufficient information to demonstrate the existence of traditional laws and customs, I cannot be satisfied that any member of the claim group holds the requisite physical connection with the application area in accordance with traditional laws and customs, which means s 190B(7) is not met.
No failure to comply with s 61A – s 190B(8): condition met
[62]	I am satisfied the application complies with ss 61A(1)–(3) and so s 190B(8) is met:
Section	Requirement	Information 	Result	
s 61A(1)	No native title determination application if approved determination of native title	Geospatial report, my own searches	Met	
s 61A(2)	Claimant application not to be made covering previous exclusive possession act areas	Schedule E	Not applicable: 
see reasons below	
s 61A(3)	Claimant application not to claim possession to the exclusion of all others in previous non-exclusive possession act areas	Schedule E	Not applicable: 
see reasons below	

Sections 61A(2)–(3)
[63]	Schedule E provides that the claim to native title rights and interests is made where there has been no extinguishment of native title or where any extinguishment is required to be disregarded. Schedule L states:
For the area covered by the application, details of:
a)	any area for which a pastoral lease is held by or on behalf of the members of the native title claim group; and
b)	any area leased, held or reserved for the benefit of Aboriginal peoples or Torres Strait Islanders that is occupied by or on behalf of the members of the native title claim group; and
c)	any vacant Crown land occupied by the members of the native title claim group; and
d)	any area mentioned in paragraph (a), (b) or (c) over which the extinguishment of native title is required by section 47, 47A or 47B of the Act to be disregarded.
The native title claim group claims the benefit of sections 47, 47A or 47B in relation to any areas to which paragraphs (a), (b), (c) or (d) apply.
[64]	According to s 61A(4), where an application states that ss 47–47B applies to it, ss 61A(2)–(3) do not apply. I also understand that where an application claims the benefits of ss 47–47B, it is not the role of the Registrar or her delegate to decide whether those provisions apply in the circumstances. Given the application is over part of portion of unallocated crown land, I consider it is arguable that s 47B applies to the application area. In my view, for the purposes of registration, a claim made in an application to the benefits of the non-extinguishment provisions of the Native Title Act does not contradict the requirements of this condition. I am satisfied that ss 61A(2)–(3) do not apply as the benefits of ss 47–47B are claimed.
Conclusion
[65]	As I am satisfied that s 61A(1) is met and ss 61A(2)–(3) are not applicable, s 190B(8) is met.
No extinguishment etc. of claimed native title – s 190B(9): condition met
[66]	I am satisfied s 190B(9) is met:
Section	Requirement	Information 	Result	
s 190B(9)(a)	No claim made of ownership of minerals, petroleum or gas that are wholly owned by the Crown	Schedule Q	Met	
s 190B(9)(b)	Exclusive possession is not claimed over all or part of waters in an offshore place	Schedule P	Met	
s 190B(9)(c)	Native title rights and/or interests in the application area have otherwise been extinguished	There is no information in the application that discloses to me that native title rights and interests in the application area have otherwise been extinguished. 	Met	

End of reasons

Attachment A
Summary of registration test result
Application name	Malarngowem #2	
NNTT No.	WC2019/003	
Federal Court of Australia No.	WAD118/2019	
Date of decision	22 March 2019	
Section 190B conditions
Test condition	Sub-condition/requirement	Result	
s 190B(2)		Met	
s 190B(3)		Met	
s 190B(4)		Met	
s 190B(5)	ss 190B(5)(a)–(c)	Not met	
s 190B(6)		Not met	
s 190B(7)		Not met	
s 190B(8)		Met	
s 190B(9)		Met	
Section 190C conditions
Test condition	Sub-condition/requirement	Result	
s 190C(2) 	ss 61–2 	Met	
S 190C(3)		Not met	
s 190C(4)	s 190C(4)(a)–(b)	Not met