Registration Decision
Application name	Mitakoodi People #5 	
Name of applicant	Tanya Kum Sing, Pearl Connelly, Kay Douglas, Brian Douglas, Norman Douglas, Ronald Major, Edward Ah Sam	
Federal Court of Australia No.	QUD556/2015	
NNTT No.	QC2015/009	
Date of Decision	8 November 2019	

Claim not accepted for registration
I have decided that the claim in the Mitakoodi People #5 application does not satisfy all of 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 satisfies all of the conditions in s 190B, but does not satisfy all of the conditions in s 190C. In particular, the claim does not satisfy the condition in ss 190C(2) and 190C(4). 

___________________________________
Heidi Evans
Delegate of the Native Title Registrar pursuant to ss 190–190D of the Act under an instrument of delegation dated 27 July 2018 and made pursuant to s 99 of the Act.
Reasons for Decision
CASES CITED
Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625 (Aplin)
Butchulla v State of Queensland [2006] FCA 1063 (Butchulla)
Corunna v Native Title Registrar [2013] FCA 372 (Corunna)
Doolan v Native Title Registrar [2007] FCA 192 (Doolan)
Drury v Western Australia [2000] FCA 132 (Drury)
Griffiths v Northern Territory of Australia [2007] FCAFC 178 (Griffiths)
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)
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) 
McGlade v Native Title Registrar [2017] FCAFC 10 (McGlade)
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) 133 FCR 112; [2003] FCA 1384 (Doepel)
Sampi v Western Australia [2005] FCA 777 (Sampi)
State of Western Australia v Strickland [2000] FCA 652 (Strickland FC) 
Stock v Native Title Registrar [2013] FCA 1290 (Stock)
Western Australia v Native Title Registrar (1999) 95 FCR 93; [1999] FCA 1591 (WA v NTR)
Western Australia v Ward [2002] HCA 28 (Ward HC)
BACKGROUND
[1]	This is an amended application filed on behalf of the Mitakoodi People #5 native title claim group (claim group). It covers land and waters of approximately 25,714 sq km east of Mt Isa, including McKinlay, Cloncurry and surrounds. 
[2]	The Registrar of the Federal Court (the Court) gave a copy of the amended application and accompanying affidavits to the Native Title Registrar (Registrar) on 24 September 2019 pursuant to s 64(4) of the Act. This has triggered the Registrar’s duty to consider the claim made in the application for registration in accordance with s 190A.
Registration conditions
[3]	Sections 190A(1A), (6), (6A), (6B) set out the decisions available to the Registrar under s 190A. Section 190A(1A) provides for exemption from the registration test for certain amended applications and s 190A(6A) provides that the Registrar must accept a claim (in an amended application) when it meets certain conditions. Section 190A(6) provides that the Registrar must accept the claim for registration if it satisfies all of the conditions of s 190B (which deals mainly with the merits of the claim) and s 190C (which deals with procedural and other matters). Section 190A(6B) provides that the Registrar must not accept the claim for registration if it does not satisfy all of the conditions of ss 190B–190C. 
[4]	I am satisfied that neither s 190A(1A) nor s 190A(6A) apply to the claim made in this amended application. The granting of leave by the Court to amend the application was not made pursuant to s 87A, and thus the circumstance described in s 190A(1A) does not arise. The amendments to the application include changes to the claim group description. As this is not an amendment of a type contemplated in s 190A(6A), I am satisfied the circumstances of that provision do not arise.
[5]	Following my consideration of the amended application pursuant to ss 190A(6) and 190A(6B), therefore, I have decided that the claim in the application must not be accepted for registration and this document sets out my reasons for that decision. 
Information considered
[6]	Section 190A(3) sets out the information to which the Registrar must have regard in considering a claim under s 190A and provides that the Registrar ‘may have regard to such other information as he or she considers appropriate’.
[7]	I have had regard to information in the application. I have also considered documents provided by the applicant directly to the Registrar on 22 October 2019:
•	Submission in support of registration of the amended native title claim for the Mitakoodi People (QUD556/2015), by [Name removed] (authorisation submissions); and
•	Affidavit affirmed by [Name removed] on 22 October 2019 (CH affidavit).
[8]	I note there is no information before me obtained as a result of any searches conducted by the Registrar of State/Commonwealth interest registers.
[9]	The state of Queensland (the State) has not provided any submissions in relation to the application of the registration test. 
[10]	I may also have regard to such other information as I consider appropriate. I have therefore considered information sent by email from members of the native title claim group to the group’s legal representative (two emails, both dated 22 October 2019), which the Senior Officer was copied into, and which were forwarded to me. I considered it appropriate to have regard to this information as it is relevant to the condition of registration at s 190C(4)(b) relating to the authority of the applicant. 
[11]	I have also considered information contained in a geospatial assessment and overlap analysis prepared by the Tribunal’s Geospatial Services in relation to the area covered by the application, dated 27 September 2019 (the geospatial assessment).
[12]	In addition, Geospatial Services prepared a map at my request, showing the boundaries of historical pastoral stations in the application area (referred to extensively within the material), and the external boundary of the application area. I considered it appropriate to have regard to this information in undertaking the task at s 190B(5)(a) regarding whether the claim group have and their predecessors had the required association with the area. 
Procedural fairness
[13]	On 25 September 2019, I caused the Senior Officer to write to the State advising of receipt of the amended application, confirming the State had a copy of the application, and inviting the State to make submissions regarding the applicability of ss 190A(1A) and 190A(6A). Again, the Senior Officer wrote to the State on 9 October 2019, advising that the delegate was proceeding to consider the application pursuant to s 190A(6), being satisfied that neither ss 190A(1A) or 190A(6A) applied. By email of 11 October 2019, the State advised the Senior Officer confirming it would not be making submissions in relation to the registration testing of the application. 
[14]	On 15 October 2019, the Senior Officer wrote to the applicant, advising of my preliminary view that the application would not satisfy all of the conditions of the registration test. As above, on 22 October 2019, the applicant provided additional material directly to the Registrar seeking to address the deficiencies with the application. Having considered the additional material, I remained of the view the application would not satisfy the requirements of the registration test.
[15]	In the meantime, I had received material from third parties which spoke to the issues with the application I had alerted the applicant to. On 23 October 2019, the Senior Officer wrote to the applicant, attaching copies of the material (emails from claim group members), and providing the applicant an opportunity to comment on the further material as it related to the conditions of registration. The applicant was given until close of business 29 October 2019 to provide any comments. No further correspondence was received from the applicant.
[16]	This concluded the procedural fairness processes.
Merits of the claim (s 190B) – Conditions met
Identification of area subject to native title – s 190B(2) condition met
[17]	I am satisfied the claim meets the requirements of s 190B(2). The information provided about the external boundary and internally excluded areas are sufficient to identify with reasonable certainty the particular land or waters over which native title rights and interests are claimed.
[18]	A written description of the external boundary of the application area is contained in Attachment B to Schedule B. It has been prepared by the Tribunal’s Geospatial Services, on 13 September 2018, and is a metes and bounds description that references watercourses, the Cloncurry River Sub-Catchment Area, land tenure boundaries, geographic coordinates and existing native title determination application and determination boundaries.
[19]	Attachment C to Schedule C contains a map showing the external boundary of the application area. Again, it has been prepared by the Tribunal’s Geospatial Services, on 5 September 2018. It includes:
•	the application area depicted by bold blue outline;
•	topographic basemap showing roads, watercourses and place names;
•	scalebar, coordinate grid, locality diagram and legend; and
•	notes relating to the source, currency and datum of data used to prepare the map. 
[20]	The geospatial assessment and overlap analysis of the application area prepared by the Tribunal’s Geospatial Services concludes that the map and description are consistent and identify the area with reasonable certainty. Having considered the information before me about the external boundary of the application area, I agree with the assessment.
[21]	Regarding those areas not covered by the application, Schedule B lists general exclusion clauses. In my view there is nothing problematic with this approach in the application satisfying this condition. With the appropriate searches of historical tenure, I am satisfied the excluded areas could be identified.
[22]	Attachment B also specifically excludes land and waters subject to the Kalkadoon People #4 determination (QUD579/2005), and land and waters subject of the Gkuthaarn and Kukatj People (QUD685/2012), and Koa People (QUD592/2015) registered claims. In my view, this explicit information provides reasonable certainty about land and waters excluded from the application area.
[23]	The requirement at s 190B(2) is met.
Identification of the native title claim group – s 190B(3) condition met
[24]	I am satisfied the claim meets the requirements of s 190B(3).
[25]	A description of the persons comprising the native title claim group appears in Schedule A of the application. It provides that the claim group on whose behalf the application is made is the Mitakoodi People, and that the Mitakoodi People are Aboriginal people who satisfy three rules or criteria. 
[26]	Firstly, such persons ‘[p]rincipally identify as Mitakoodi people and as belonging to the traditional country of their Mitakoodi forebears’. Secondly, such persons are ‘recognised by other Mitakoodi people as the biological descendants of deceased Mitakoodi people’. Thirdly, such persons ‘[a]re the descendants of the following deceased [A]boriginal people: Minnie; Thomas ‘Tiger’ Mitchell; Dinah; Topsy and Sophie.’
[27]	In my view, the last criterion provides an objective starting point for a factual inquiry into the persons comprising the claim group. While identifying the persons meeting this criterion would undoubtedly take some research, I do not consider that this results in any ambiguity or lack of clarity. Through consideration of genealogical materials, I am satisfied the persons meeting this criteria could be identified. 
[28]	While the description does not make explicit whether persons who are descendants by adoption are included in the claim group, I consider this could also be determined with reference to the traditional laws and customs of the group. 
[29]	As to determining the persons who also satisfy the first and second criteria set out in the description (having determined the descendants of the named ancestors in the first instance), I consider that this could be achieved through a process of questioning the subject individual (for the first criterion), and then interviewing other members of the claim group (for the second criterion). Again, this would take some research, however I consider that this process would enable the persons meeting all three criteria to be determined. I also note the observations by the Court in Aplin that ‘[claim group] membership must be based on group acceptance.’
[30]	It follows that I consider the persons in the group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group.
[31]	The requirement at s 190B(3) is satisfied.
Identification of claimed native title – s 190B(4) condition met
[32]	I am satisfied the description in Schedule E is sufficient for me to clearly understand and identify the itemised rights as ‘native title rights and interests.’
[33]	The description of the rights and interests claimed by the native title claim group in relation to the application area, required by s 62(2)(d), appears in Schedule E.
[34]	Paragraph one of the description sets out a claim to a right of exclusive possession.
[35]	Paragraph two sets out numerous non-exclusive rights, claimed in relation to areas where exclusive native title cannot be recognised. 
[36]	Paragraph three states that the claimed rights are subject to the valid laws of Queensland and the Commonwealth, and any rights conferred under those laws.
[37]	I have read the contents of Schedule E together, including the stated qualifications, and am satisfied there is no inherent or explicit contradiction within the description. Further, with reference to s 223 of the Act, I consider that the rights and interests claimed are understandable and have meaning as ‘native title rights and interests’.
[38]	It follows that I consider the description of the native title rights and interests claimed sufficient to allow those rights and interests to be readily identified.
[39]	The requirement at s 190B(4) is met.
Factual basis for claimed native title – s 190B(5) condition met
[40]	I am satisfied the factual basis on which it is asserted that the claimed native title rights and interests exist is sufficient to support the assertion. In particular, there is a sufficient factual basis for the three assertions of ss 190B(5)(a)–(c).
[41]	For the application to meet the requirements of 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 native title rights and interests; and
(c)	that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.
[42]	The question for this condition is whether the factual basis is sufficient to support these assertions. I must 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’.
[43]	Section 62(2)(e) requires only a ‘general description’ of the factual basis. However, where the facts provided are not at a sufficient level of detail to enable a genuine assessment of the application by the Registrar, the application may not be able to satisfy the condition. The material must comprise ‘more than assertions at a high level of generality’.
[44]	To satisfy the condition, the material must contain sufficient details addressing the particular native title, claimed by the particular native title claim group, over the particular land and waters of the application area.
[45]	The factual basis material appears at Schedule G and in ‘Attachment F and M’.
What is required to provide a sufficient factual basis for s 190B(5)(a)?
[46]	To meet the requirement at s 190B(5)(a), the factual basis must support the assertion that ‘the native title claim group have, and the predecessors of those persons had, an association with the area.’ Generally, to satisfy this requirement:
•	it is not necessary for the factual basis to support an assertion that all members of the native title claim group have an association with the area at all times;
•	it is necessary that the material is sufficient to support that the group as a whole presently has an association with the area and to also support an association with the area by the predecessors of the whole group over the period since sovereignty, or at least since European settlement; and
•	the materials must support that the association both presently and by the group’s predecessors relates to the area as a whole.
Is there a sufficient factual basis for the purposes of s 190B(5)(a)?
[47]	I am satisfied the factual basis is sufficient to support an assertion that the native title claim group have, and the predecessors of those persons had, an association with the land and waters of the application area.
[48]	As set out in the material, the area subject of the application was explored by Burke and Wills in 1860-1861, and during that trip, along the Cloncurry River, the material provides that Wills observed Aboriginal people in the area during their travels. The material further explains that Walter Roth identified the particular inhabitants of the application area as the Mitakoodi, or Mita-Thakurti, in 1897. He associated the group with the Cloncurry River and its branches, including the area subject of Canobie Station, which was established in 1864.
[49]	Contemporary linguistic works referred to in the material explain that mapping of the Mayi languages placed the Mayi-thakurti (Mitakoodi) on the upper Cloncurry River and south of Canobie Station. 
[50]	The material asserts settlement in the area to have taken place in the 1860s to 1870s, with the establishment of pastoral properties and the discovery of gold in the area in the 1870s. In particular, the material states that the properties known as Fort Constantine Station, Canobie Station, Boomara Station, Wurung Station, Byrimine Station and Donors Hill Station are all within Mitakoodi country. Consideration of a map prepared by the Tribunal’s Geospatial Services has allowed me to confirm all of these stations are within or in close proximity to the application area. 
[51]	The application names five persons who are the apical ancestors of the native title claim group. Information provided in Attachment F and M sets out information from the historical and anthropological records for those individuals, including their estimated dates of birth and places with which they were associated. The birth dates for these ancestors range from 1862 to 1890, and places they are recorded as being associated with include Canobie Station, Wurung Station, Fort Constantine Station, Lorraine Station and the Cloncurry River. I note that later in life, some of the apical ancestors were sent to Palm Island, which is not in the application area.
[52]	In light of this information before me regarding the historical, linguistic and anthropological sources placing the Mitakoodi people in the application area at and prior to settlement in the region, and the information placing the apical ancestors within the area at settlement or soon after, I am satisfied the factual basis is sufficient to support an assertion that the predecessors of the claim group were associated with the area at settlement.
[53]	The material also provides information about the descendants of the apical ancestors, including places with which those persons were associated. For example, regarding apical ancestor Topsy, the material states that she had a daughter [Name Removed], born on Canobie Station around 1907, who went on to marry [Name Removed] and have nine children, including a daughter [Name Removed]. From the material, I understand that [Name Removed] is a member of the claim group today, and she explains that her mother [Name Removed] and her grandmother Topsy ‘belonged to the Canobie tribe.’
[54]	Elsewhere, the material speaks about the Coppermine Creek Reserve in Cloncurry where families descended from the apical ancestors lived, accessing traditional foods from the bush to provide them with adequate sustenance. The material also refers to the employment of members of the intervening generations between the current claimants and the apicals, within the application area, as stockmen and wood cutters.
[55]	Regarding an association of the claim group members today with the application area, the material states that several claimants presently reside on traditional Mitakoodi country, in Cloncurry, or in the nearby towns of Mt Isa and Normanton. It explains that those who live further afield return often to visit relatives and spend time on country. For example, it’s stated that one claimant takes her children and grandchildren out on country when they come to visit, and teaches them about bush medicines and bush tucker.
[56]	Elsewhere the material talks about a claimant who visits a swimming place near Black Mountain, and it describes the behaviour and practices he adheres to in visiting these water places in order to let ancestor spirits in the area to know he is there and he is a Mitakoodi man.
[57]	Another example of the material speaking to a present association of claim group members is where Attachment F and M refers to a claimant who regularly visits the grave of a predecessor, within the application area just outside of Cloncurry.
[58]	In light of these examples before me, discussing the way in which members of the claim group continue to reside within, or return to visit specific places within the application area, I am satisfied the factual basis is sufficient to support an assertion that the members of the claim group have a present association with the area.
[59]	I note that the requirement at s 190B(5)(a) is that the association asserted is with the whole of the application area. Throughout the material, various place names are given, and the names of a number of pastoral stations. As above, I have considered the location of these pastoral stations, and further, using the Tribunal’s Native Title Vision Plus database, I have considered the location of the remaining places referred to in the material relative to the boundary of the application area. In doing so, it is my view that these places and pastoral properties are spread across the full geographic extent of the area, such that the association can be said to be with the entirety of the application area.
[60]	It follows that I am satisfied the factual basis is sufficient to support an assertion that the native title claim group have, and the predecessors of those persons had, an association with the land and waters of the application area.
[61]	The requirement at s 190B(5)(a) is met. 
What is required to provide a sufficient factual basis for s 190B(5)(b)?
[62]	To meet s 190B(5)(b), the factual basis must support the assertion ‘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’. The wording of s 190B(5)(b) is almost identical to that at s 223(1)(a) of the Act which provides the definition of ‘native title rights and interests’. Dowsett J approached this in Gudjala 2007 by considering s 190B(5)(b) in light of the case law regarding s 223(1)(a), particularly the leading decision of the High Court in Yorta Yorta.
[63]	According to the High Court’s decision in Yorta Yorta, a law or custom is ‘traditional’ where:
(a)	it ‘is one which has been passed from generation to generation of a society, usually by word of mouth and common practice’;
(b)	the origins of the content of the law or custom concerned can be found in the normative rules of a society which existed before the assertion of sovereignty by the Crown;
(c)	the normative system has had a ‘continuous existence and vitality since sovereignty’; and
(d)	the relevant society’s descendants have acknowledged the laws and observed the customs since sovereignty and without substantial interruption.
[64]	Dowsett J found that a sufficient factual basis must therefore demonstrate that the laws and customs relied on by the claim group ‘have their source in a pre-sovereignty society and have been observed since that time by a continuing society.’ His Honour held that the ‘starting point must be identification of an indigenous society at the time of sovereignty’, and concluded that a sufficient factual basis must also establish a link between the native title claim group described in the application and the area covered by the application, which involves ‘identifying some link between the apical ancestors and any society identified at sovereignty.’
[65]	I understand that it is not appropriate that I impose too high a burden when assessing these matters, having regard to the limited nature of the enquiry when assessing the condition of s 190B(5).
Is there a sufficient factual basis for the purposes of s 190B(5)(b)?
[66]	As above, the starting point at s 190B(5)(b) is the identification of a society of people living in the application area, bound by the common observance of normative laws and customs. As discussed above at s 190B(5)(a), the material provides that in the late 1800s, Walter Roth identified the persons in occupation of the application area as the Mitakoodi, or Mita-Thakurti. He described them as the ‘messmates’ of the Mikoolun and the Miubbi, who also occupied area around Canobie Station. My understanding of the material is that present day claimants consider themselves Mitakoodi, but that at settlement, the relevant society from whom they are descended included the Mikoolun and the Miubbi. 
[67]	I further understand that all of these persons comprising the society were Mayi speaking peoples. The material provides that the Mayi languages were mapped in 1981, and the Mita-Thakurti, the Mikoolun and the Miubbi were sub-groups associated with localised areas within the area subject of this application.
[68]	As touched on in my reasons above at s 190B(5)(a), the material asserts the apical ancestors to be persons who were born in the area, around the time of settlement. In this way, I understand the material to assert that the apical ancestors were persons born into this society of Mayi-speaking people around settlement, and whose parents would have been members of that society. Consequently, I am satisfied the material identifies the persons comprising the society in the area at settlement, and establishes a link between the apicals and that society.
[69]	Regarding the normative laws and customs, adherence to which bound the members of the society, the material explains that traditional laws and customs provide rights and interests in country are acquired through a mother or father descended from one of the apical ancestors. It also describes a classificatory system of kinship in which an individual’s parents and grandparents, and closer relatives, play a key role in passing on knowledge, rights and responsibilities.
[70]	Elsewhere the material provides an example of this, explaining the role particular apical ancestors played in imparting knowledge about the application area to younger generations, taking them out on country and providing them with instruction. Specifically, the material explains that apical ancestor Minnie’s daughter, [Name Removed], had extensive knowledge about traditional plants that she received from her mother, and that ‘[Name Removed] became an influential elder for her people imparting her knowledge through trips onto her Mitakoodi country.’
[71]	In addition to this, the material refers to a number of historical sources, and also to the oral testimony of claimants about the apical ancestors, in describing those laws and customs. For example, the material speaks about the observations of Edward Palmer, a pastoralist in the area in the late 1800s, including that the Mitakoodi people moved their camps and places of residence within the application area in accordance with the seasons, seeking to ensure they had access to water and avoiding boggy areas in the wet season. Walter Roth is referred to as recording the types of housing they constructed at these camps. Known camp sites of the ‘old people’ are spoken of, including that these places contain grindstones, stone tool scatters and rock art. 
[72]	In my view, this material speaks to laws and customs surrounding access to and use of the application area and its resources. I consider that these observations support an assertion that there were normative patterns of behaviour, and patterns of use of resources that members of the group adhered to.
[73]	Another historical source is referred to regarding laws and customs around ceremonies held on the application area. In the late 1800s, Roth described in detail an initiation ceremony for a young boy, commencing in Cloncurry and moving to other places within the area. The material also sets out one claimant’s memories of corroborees on Canobie Station as she was growing up in the 1930s. This claimant is the daughter of apical ancestor Topsy, such that I consider it reasonable to infer these practices were also undertaken by her mother and predecessors, around the time of settlement. 
[74]	It follows that I consider the factual basis addresses a society in the area at settlement, acknowledging and observing normative laws and customs.
[75]	From the information discussed above that is before me regarding the way in which parents, grandparents and other close relatives have a special role in imparting knowledge about country, and also rights and responsibilities in relation to country, I am satisfied the material speaks to laws and customs that have been handed down through the generations by word of mouth, or through common observance.
[76]	An example given is where the material explains that one claimant grew up in Cloncurry learning about Mitakoodi culture from her parents, and was also taught about country by her grandmother, the daughter of apical ancestor Minnie. The material further explains that the claimants’ grandmother was a special mentor to her sister, and a teacher of Mitakoodi culture, and that the two of them would go out on country to get medicinal plants, inspect Dreaming sites and other ceremonial locations. 
[77]	Elsewhere the material explains the way members of the claim group today continue to follow these practices, taking their children and grandchildren out on country for the purposes of passing on knowledge about their country and their culture. I consider this to be an example not only of material about the intergenerational transfer of traditional laws and customs, but also an example of material that speaks to laws and customs that are rooted in those of the society at settlement. This is noting that normative practices acknowledged and observed by the apical ancestors at settlement continue to be acknowledged and observed by members of the group today.
[78]	Another example of material speaking to laws and customs acknowledged and observed today that are rooted in those of the society at settlement is the information about ceremonies on the application area. As above, one elderly claimant recalls attending corroborees on Canobie Station. Further, the material provides that close to Fort Constantine Station homestead is a fenced off bora ground, where young boys were initiated. Claimants today regard this as a sacred site, as they also do for another men’s business place just outside of Cloncurry. One claimant’s grandmother warned her to avoid this place. In my view, this indicates that laws and customs around ceremonies and ceremonial areas continue to be acknowledged and observed by members of the claim group, and that these are derived from laws and customs passed down to them by their predecessors.
[79]	In light of these examples above, I consider the factual basis speaks to laws and customs of the claim group today that are rooted in those of the society at settlement, of which the apical ancestors were members.
[80]	It follows that I am satisfied the factual basis is sufficient to support an assertion that there exist traditional laws and customs acknowledged and observed by the native title claim group giving rise to the claim to native title.
[81]	The requirement at s 190B(5)(b) is met.
What is required to provide a sufficient factual basis for s 190B(5)(c)?
[82]	To meet s 190B(5)(c), the factual basis must support the assertion ‘that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs’ addressed in the requirement in s 190B(5)(b). In order for a delegate to be satisfied that there is a factual basis for s 190B(5)(c) there must be some material which addresses the following matters outlined by Dowsett J in Gudjala 2007:
•	that there was a society at settlement that observed traditional laws and customs from which the identified existing laws and customs were derived and were traditionally passed to the claim group; and
•	that there has been continuity in the observance of traditional law and custom going back to sovereignty or at least European settlement.
Is there a sufficient factual basis for the purposes of s 190B(5)(c)?
[83]	I have already explained above at s 190B(5)(b), the reasons for which I am satisfied the factual basis is sufficient to support an assertion of a society in the area at settlement, acknowledging and observing laws and customs from which the present day laws and customs are derived.
[84]	From the material, I understand that there are generally only two generations separating the members of the claim group from the apical ancestors in the area at settlement. For example, I note that the daughter of apical ancestor Topsy is presently an elder within the claim group. 
[85]	Throughout the material, members of the claim group share their knowledge of the way the apical ancestors and intervening generations acknowledged and observed laws and customs relating to Mitakoodi country. For example, the material provides that apical ancestor Topsy lived all her life at Canobie Station and that her daughter [Name Removed] recalls trips out onto country to fish and collect traditional foods. The material explains that [Name Removed] lived in the Aboriginal quarters at the station with her mother, stepfather and sister. She also went out on country with apical ancestor Minnie, who visited from stations nearby.
[86]	In this way, I consider the material speaks to a living memory that claimants possess of the normative patterns of behaviour of the apical ancestors in the area around the time of settlement, and of generations since that time. From this information, I understand that these patterns of behaviour, established under Mitakoodi laws and customs, continue to be observed today among members of the claim group, in the same way their parents and grandparents observed them, and in the same way as they were instructed by these predecessors.
[87]	It follows that I am satisfied the factual basis is sufficient to support an assertion that the native title claim group have continued to hold their native title in accordance with traditional laws and customs.
[88]	The requirement at s 190B(5)(c) is met. 
Prima facie case – s 190B(6): condition met
[89]	I consider that all of the claimed rights and interests have been established on a prima facie basis. Therefore, the claim satisfies the condition of s 190B(6).
[90]	For the application to meet the requirements of s 190B(6), the Registrar ‘must consider that, prima facie, at least some of the native title rights and interests clamed can be established.’ I note the following comments by Mansfield J in Doepel in relation to this condition:
•	it requires some measure of the material available in support of the claim;
•	although s 190B(5) directs attention to the factual basis on which it is asserted that the native title rights and interests are claimed, this does not itself require some weighing of that factual assertion as that is the task required by s 190B(6); and
•	section 190B(6) appears to impose a more onerous test to be applied to the individual rights and interests claimed.
[91]	Mansfield J found that the use of the words ‘prima facie’ in s 190B(6) means that ‘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.’
[92]	Noting the definition of ‘native title rights and interests’ in s 223(1) of the Act, in order for me to consider a right or interest prima facie established, it must be shown to be a right or interest that is:
(a)	possessed under the traditional laws and customs of the native title claim group;
(b)	a right or interest in relation to the land or waters of the application area; and
(c)	not extinguished in relation to the entirety of the application area.
Exclusive possession
[93]	The nature of a native title right to exclusive possession was discussed in Ward HC, where the High Court held that:
A core concept of traditional law and custom [is] the right to be asked permission and to ‘speak for country’. It is the rights under traditional law and custom to be asked permission and to ‘speak for country’ that are expressed in common law terms as a right to possess, occupy, use and enjoy land to the exclusion of all others.
[94]	Since Ward HC, there have been a number of cases that have also considered the substance of such a right. From these cases, the following principles have emerged:
•	a native title right to exclusive possession includes the right to make decisions about access to and use of the land by others;
•	the right cannot be formally classified as proprietary - its existence depends on what the evidence discloses about its content under traditional law and custom; and
•	the material must speak to how, pursuant to their laws and customs, the group is able to ‘exclude from their country people not of their community’, acting as ‘gatekeepers for the purpose of preventing harm and avoiding injury to country.’
[95]	In my view, the material speaks to a right of this nature. Attachment F and M explains that the rights and interests in the application area are exercised by the Mitakoodi in ‘the context of an all powerful and at times dangerous spirituality.’ It further states that this ‘requires adherence to customary rules that mandate behaviour and actions, including rules relating to avoidance of place, respect for country and animals and plants in terms of taking and using, prohibition on the removal of objects from country and when to acknowledge and speak to spirits of the country so that they can be mollified or placated.’  
[96]	One claimant explains her experience and understanding of these forces, and the rules and practices that seek to address the harm that may flow from them. According to the material, she stresses the importance of non-traditional owners being accompanied by Mitakoodi people when going out on country, explaining that in the past people who did not adhere to these practices had fallen sick and passed away for visiting places they were not allowed.
[97]	In addition to this, historical sources referred to in the material, in my view, speak to a right of the claim group to control access to the application area. The material explains that early pastoralist Edward Palmer observed particular rules that had to be followed by visitors to Mitakoodi country when large gatherings of neighbouring groups were held. He observed that ‘[w]hen tribes met at certain places such as large lagoons in another’s hunting ground, they did so with the permission or consent of the owner of that place’, and that once the gathering was over, they immediately returned to their home country. The observations of Walter Roth are also set out in the material. He described the way different language speaking groups would meet at places on Canobie Station and Fort Constantine Station for exchange and ceremony, and the way the visitors from neighbouring country carried message sticks ‘as a safeguard or form of passport’ as the carrier was unknown to the host group. He also described a practice of designated walking paths for trade purposes, where visitors could travel without fear of attack.
[98]	In my view, this material speaks to the way the permission of the predecessors of the claim group had to be sought before any non-Mitakoodi person could enter the land and waters of the application area. The material reveals the content of the laws and customs surrounding foreigners accessing the area, including the strict protocols and practices that had to be followed in a foreigner gaining that access.
[99]	In addition, I consider the material reveals the way these practices are based on a belief of the members of the claim group that harm from spiritual forces that inhabit the landscape will befall persons who visit places they are not allowed to, or who fail to follow the correct procedure when engaging with sites on country. In this way, I consider the material speaks to a right of the claim group to act as gatekeepers for the purposes of preventing harm.
[100]	It follows that I consider the right established on a prima facie basis.
Non-exclusive right to access, be present on, move about on and travel over the area
[101]	The material includes detailed information about the way members of the claim group and their predecessors have continued to live within the application area, including while working on pastoral stations in the area. The material also explains the way members of the group consider their occupation of the area pursuant to their traditional laws and customs, as descendants of the Mitakoodi apical ancestors. 
[102]	I consider the right established on a prima facie basis. 
Non-exclusive right to camp, live temporarily on and build temporary structures on the area
[103]	Again, the material addresses this right specifically, referring to historical sources which record the way the predecessors of the group would locate their camps close to water sources, but also move these camping spots in accordance with the seasons. A historical source also speaks about the shelters built by the Mitakoodi predecessors when spending time on country. The material also sets out claimants’ recollections of camping on the area, and the way they continue to do this today.
[104]	In my view, this information is sufficient to allow me to consider the right established on a prima facie basis. 
Non-exclusive right to hunt, fish, and gather on the area
[105]	I note that the wording of this right in Schedule E specifies that the right to hunt, fish and gather on the area is for ‘personal, domestic, commercial and communal purposes.’ 
[106]	In Attachment F and M, there are numerous statements from claimants describing time they have spent on country engaging in the activities of hunting, fishing and gathering of resources. The material explains that they did this with their parents and grandparents, and also explains the way they take their children and grandchildren out on country today for this purpose. Regarding a right to take these resources for commercial purposes, the material explains the way shell ornaments and items made from animal fur were traded with neighbouring groups in early settlement times. Elsewhere, the material describes the way the laws and customs of the group mandate respect for animals and plants in the taking and use of resources.
[107]	In light of this information before me, I consider the right established on a prima facie basis.
Non-exclusive right to take, use, share and exchange resources from the area
[108]	As above, the material refers to observations made by Walter Roth of trading centres within the application area, where Mitakoodi predecessors exchanged red and yellow ochre and a blueish copper stone from the area, as well as items they had crafted including large coolamons, fighting poles, spears, and fishing nets, with neighbouring groups. Roth named centres at Canobie Station and Fort Constantine Station.
[109]	In my view, this information is sufficient to allow me to consider the right established on a prima facie basis.
Non-exclusive right to take and use the water of the area
[110]	Throughout the material are references to, and descriptions of, the way members of the claim group and their predecessors camped at and swam in water holes and water sources within the application area. This includes information taken from historical sources, and statements by claimants. Specifically regarding the taking of water, the material explains how claimants would boil certain plants in water from these sources to make medicines or herbal drinks. The material describes the way members of the claim group were passed this knowledge of preparing these concoctions by their parents and grandparents.
[111]	In my view, this information is sufficient to allow me to consider the right established on a prima facie basis.
Non-exclusive right to conduct ceremonies and dance on the area
[112]	As mentioned above in my reasons at s 190B(5)(b), the material describes one claimants’ recollections of corroborees on Canobie Station in the 1930s when she was growing up. Elsewhere, the material sets out information about certain Bora grounds and men’s business places known by claimants and considered sacred or special.
[113]	In my view, this information is sufficient to allow me to consider the right established on a prima facie basis.
Non-exclusive right to hold meetings on the area
[114]	Attachment F and M sets out observations made by Edward Palmer of a men’s council gathering on Canobie Station. He explained that the role of the council was to settle serious quarrels and punish offenders under Aboriginal law, and that at the meetings, the younger men would defer to the elders. The material also talks about gatherings of claim group members on the application area today, for cultural heritage purposes and for family occasions or cultural lessons.
[115]	In my view, this information is sufficient to allow me to consider the right established on a prima facie basis. 
Non-exclusive right to teach on the area the physical and spiritual aspects of the area
[116]	The material gives a number of examples of specific claim group members being taught about country by their parents and grandparents, and also gives examples of the way members of the group pass on this information to younger generations today. It is clear that across the period since settlement, including today, members of the group and their predecessors have exercised this right in relation to the application area, such that I consider the material to demonstrate it as a right held pursuant to the traditional laws and customs of the group.
[117]	In my view, this information is sufficient to allow me to consider the right established on a prima facie basis.
Non-exclusive right to light fires on the area
[118]	In addition to the material that speaks about the way claimants and their predecessors have fished and hunted on the application area, there is also material before me that speaks to how animals caught are prepared for food, and cooked on the application area. For example, one claimant shares how she was taught by her grandmother and other elders the traditional way of cooking food with fires, and another claimant talks about cooking fish and other seafood on hot coals.
[119]	In my view, this information is sufficient to allow me to consider the right established on a prima facie basis.
Non-exclusive right to maintain and protect places of importance and areas of significance in the area
[120]	As discussed above regarding a right of exclusive possession, claimants and their predecessors have and continue to engage with country in accordance with strict protocols, due to a belief that strong and powerful spirits within the landscape can bring about harm upon persons who approach sites incorrectly. As set out in the material, this belief has caused claimants to be proactive in protecting special places and ensuring they are maintained and/or not disturbed. One way claimants do this today, according to the material, is through cultural heritage activities.
[121]	In my view, this information is sufficient to allow me to consider the right established on a prima facie basis.
Non-exclusive right to be accompanied onto the area by non-native title holders
[122]	The wording of this right explains that non-native title holders include spouses of claimants and other immediate family members, and people required under traditional law and custom for the performance of or participation in ceremony. As discussed above regarding the right of exclusive possession, early settlers in the area observed members of neighbouring groups coming onto the application area for the purposes of ceremony and trade. In addition to this, the material gives examples of predecessors of the group marrying non-Mitakoodi people, such that I can infer a right to take these persons into the application area has been exercised at various times over the period since settlement.
[123]	In my view, this information is sufficient to allow me to consider the right established on a prima facie basis.
Physical connection – s 190B(7): condition met
[124]	I am satisfied at least one member of the native title claim group currently has or previously had a traditional physical connection with a part of the claim area. 
[125]	For the application to meet the requirements of s 190B(7), the Registrar ‘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.’
[126]	The following principles have emerged from the case law about what is required at s 190B(7):
•	the material must satisfy the delegate of particular facts, therefore, evidentiary material is required;
•	the focus is confined to the relationship of at least one member of the native title claim group with some part of the claim area;
•	the physical connection must be shown to be in accordance with the traditional laws and customs of the claim group; and
•	the material may need to address an actual presence on the area.
[127]	The focus of this condition is upon one member of the group and the physical connection of that person with some part of the application area. For the purposes of my consideration here, therefore, I have turned my mind to the information before me about one claim group member, being [Name Removed].
[128]	The material provides the following information about [Name Removed]:
•	she is the great granddaughter of apical ancestor Minnie;
•	her grandmother [Name Removed] taught her knowledge about traditional plants from the area;
•	she grew up living at the Aboriginal reserve in Cloncurry and the family regularly hunted and gathered bush foods from the surrounding area;
•	her family has lived and worked at stations on Mitakoodi country including Fort Constantine and others in the vicinity of Cloncurry;
•	during holiday times they would go camping on country at sites close to water sources, fishing and cooking their catch for food;
•	when her children and grandchildren come to visit her, she takes them out on country to show them bush medicines and bush tucker; and
•	she assists with cultural heritage work, protecting special places within the application area from mining exploration.
[129]	It is clear from the material that [Name Removed] is a member of the native title claim group. Further, from the material, I understand that [Name Removed] has lived her entire life within the application area, and continues to reside there today. It follows that I am satisfied she has a physical connection with the area.  
[130]	In light of the information before me, I am also satisfied [Name Removed]’ physical connection is in accordance with the traditional laws and customs of the claim group. This is on the basis that the material explains the way she has been taught knowledge about her country by her grandmother, and how she continues to pass this knowledge on to her own children and grandchildren during trips out on country.
[131]	Further, I note that [Name Removed] has accessed and used the natural resources of the area in accordance with her rights and interests there, as a descendant of one of the apical ancestors, and in accordance with the normative patterns passed down to her by her parents and grandparents. In my reasons above at s 190B(5)(b), I explain the way the material asserts this access to and use of resources as one aspect of the traditional laws and customs of the group.
[132]	It follows that I am satisfied at least one member of the claim group currently has and previously had, a traditional physical connection with some part of the application area.
[133]	The requirement at s 190B(7) is met. 
No failure to comply with s 61A – s 190B(8): condition met
[134]	In my view the application does not offend any of the provisions of ss 61A(1)–(3) and therefore the application satisfies the condition of s 190B(8):
Requirement	Information addressing requirement	Result	
Section 61A(1) No native title determination application if approved determination of native title	Geospatial report 	Met	
Section 61A(2) Claimant application not to be made that covers any previous exclusive possession act areas	Schedule B (see below)	Met	
Section 61A(3) Claimant applications not to claim exclusive possession in areas covered by previous non-exclusive possession acts	Schedule B, paragraph [3]	Met	

Section 61A(2)
[135]	Section 61A(2) provides that a claimant application must not be made over areas covered by a previous exclusive possession act, unless the circumstances described in subparagraph (4) apply. Schedule B lists numerous categories of tenure that are excluded from the application area, such as areas subject to a scheduled interest, a freehold estate, residential leases, exclusive agricultural and exclusive pastoral leases, and any lease that confers a right of exclusive possession. Previous exclusive possession acts are defined in 23B of the Act, and I note that the definition lists the same categories of tenure listed in Schedule B. It is my understanding, therefore, that it is any area subject to a previous exclusive possession act that is excluded from the application. 
No extinguishment etc. of claimed native title – s 190B(9): condition met
[136]	In my view the application does not offend any of the provisions of ss 190B(9)(a)–(c) and therefore the application meets the condition of s 190B(9):
Requirement	Information addressing requirement	Result	
Section 190B(9)(a) No claim made of ownership of minerals, petroleum or gas that are wholly owned by the Crown	Schedule Q	Met	
Section 190B(9)(b) Exclusive possession is not claimed over all or part of waters in an offshore place	Schedule P	Met	
Section 190B(9)(c) Native title rights and/or interests claimed in the application area have not otherwise been extinguished	Schedule B, paragraph [6]	Met	

Procedural and other matters (s 190C)—Conditions not met
Information etc. required by ss 61–2 – s 190C(2): condition met
[137]	I have examined the application and I am satisfied that it contains the prescribed information and is accompanied by the prescribed documents.
[138]	To meet s 190C(2), the Registrar must be satisfied that 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. This condition does not require any merit or qualitative assessment of the material to be undertaken. 
Section 61
[139]	The application contains the details specified in s 61.
Section 61(1)
[140]	Section 61(1) sets out the applications that can be made pursuant to the Act, and the persons able to make each of those applications. For a native title determination application, the persons able to make the application are ‘a person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed’.
[141]	In undertaking the task at s 61(1) for the purposes of s 190C(2), my consideration is limited to the information contained in the application, and does not involve any merit assessment. It must appear on the face of the application that this requirement is not met.
[142]	I note that at s 190C(4)(b) below, I am not satisfied the applicant is authorised by all the persons in the native title claim group to make the amended application and to deal with matters arising in relation to it. This is on the basis that the authorisation material accompanying the application at Attachment A indicates that the claim group gave its authority to an applicant that included only one of claimants Brian Douglas or Norm Douglas, and not both men. The Form 1 names seven persons, including Brian Douglas and Norm Douglas, as the applicant. These two claimants, along with the five other named applicant persons, have affirmed an affidavit filed with the application that they are authorised by all the persons in the native title claim group to make the application and deal with all matters arising in relation to it. 
[143]	In my view, having regard to the information contained in Attachment A regarding authorisation, I cannot be satisfied the application is made by a person or persons authorised by all the persons in the native title claim group. 
[144]	The requirement at s 61(1) is not met.
Section	Details	Form 1	Result	
s 61(1)	Native title claim group 	Schedule A, Part A(2) Authorisation	Not 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
[145]	The application contains the details specified in s 62.
Section 62(1)(a)
[146]	Affidavits affirmed by each of the named applicants pursuant to s 62(1)(a) accompany the application at Attachment R. All of these affidavits appear to have been affirmed in relation to the present amended application (affirmed on dates in August 2019) and were filed with the application. I note that they contain information about the authorisation meeting held in Cloncurry on 6 July 2019.
[147]	I have considered the contents of each of the affidavits, and am of the view that six of the seven include all of the statements required by ss 62(1)(a)(i) to (v). The affidavit affirmed by Brian Douglas, however, fails to include a statement to the effect of s 62(1)(a)(v). That is, a statement setting out the process of decision-making used by the group to authorise the applicant to make the application. 
[148]	While in Drury, the Court held that there was no express requirement for fresh affidavits to be filed with an amended application, in this instance, I have been provided with fresh affidavits that relate specifically to the amended application before me. I consider, therefore, that for this requirement to be met for the purposes of s 190C(2), those affidavits must be found to be compliant. As above, due to the deficiency with the affidavit of Brian Douglas, they are not.
[149]	The requirement of s 62(1)(a) is not met.
Section	Details	Form 1	Result	
s 62(1)(a)	Affidavits in prescribed form	Attachment R	Met – comments above	
s 62(2)(a)	Information about the boundaries of the area	Schedule B and Attachment B	Met	
s 62(2)(b)	Map of external boundaries of the area	Attachment C	Met	
s 62(2)(c)	Searches	Schedule D	Met	
s 62(2)(d)	Description of native title rights and interests	Schedule E	Met	
s 62(2)(e)	Description of factual basis 	Attachment F and M	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	Met	
No previous overlapping claim group – s 190C(3): condition met
[150]	I am satisfied that no person is included in the native title claim group for this application that was a member of the native title claim group for any previous overlapping application.
[151]	It is only where there is an application meeting all three criteria set out in ss 190C(3)(a), (b) and (c), that is, a ‘previous application’, that the requirement for me to consider the possibility of common claimants between claim groups arises. 
[152]	The geospatial assessment identifies one overlapping application that currently appears in an entry on the Register of Native Title Claims (the Register), being the Mitakoodi People #5 application. This is the very application that is before me. As this record simply reflects the pre-amended Mitakoodi People #5 application area, as entered on the Register, I do not consider it an ‘overlapping’ application for the purposes of this condition. I note that upon my decision not to accept this amended application for registration, that underlying, pre-amended record will cease to exist.
[153]	The requirements of s 190C(3) are met. 
Identity of claimed native title holders – s 190C(4): condition not met
[154]	I am not satisfied that the requirement in s 190C(4)(b) is met. That is, I am not satisfied the applicant is a member of the native title claim group and is authorised by all of the persons in the native title claim group to make the application and deal with all matters arising in relation to it.
[155]	For the application to meet the requirements of s 190C(4), the Registrar must be satisfied that the application has been certified by all representative Aboriginal/Torres Strait Islander bodies that could certify the application in performing its functions. If the application has not been certified, the Registrar must be satisfied that 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.
[156]	With reference to Schedule R, the application does not purport to be certified under s 190C(4)(a). It follows that it is necessary to consider if the application meets the requirements set out in s 190C(4)(b). I must also consider the application against the requirements set out in s 190C(5). That is, that the application itself includes a statement to the effect that the requirement of paragraph 4(b) has been met and briefly sets out the grounds on which the Registrar should consider that it has been met.
[157]	In Doepel, Mansfield J discussed the interaction between s 190C(4)(b) and s 190C(5) and how the Registrar is to be satisfied as to these conditions:
In the case of subs (4)(b), the Registrar is required to be satisfied of the fact of authorisation by all members of the native title claim group. Section 190C(5) then imposes further specific requirements before the Registrar can attain the necessary satisfaction for the purposes of s. 190C(4)(b). The interactions of s. 190C(4)(b) and s. 190C(5) may inform how the Registrar is to be satisfied of the condition imposed by s. 190C(4)(b), but clearly it involves some inquiry through the material available to the Registrar to see if the necessary authorisation has been given.
[158]	Having considered the information in Schedule R, in affidavits at Attachment R, and a ‘Summary of Outcomes’ document for relevant authorisation meetings at Attachment A, I am satisfied the requirement at s 190C(5) is met. Schedule R contains the statement prescribed by s 190C(5)(a), and Attachment A gives details of an authorisation meeting attended by the members of the native title claim group held in Cloncurry on 6 July 2019 which I consider amounts to the ‘brief’ information required by s 190C(5)(b).
[159]	As above, in considering the application pursuant to s 190C(4)(b), I am required to be satisfied of the fact of authorisation, and in doing so, on the basis of the material before me, am to determine whether the necessary authorisation has been given. I note that ‘authorisation is a matter of considerable importance and fundamental to the legitimacy of native title determinations.’
[160]	The application before me names seven persons as the applicant. The application is accompanied by affidavits affirmed by each of these seven persons pursuant to s 62(1)(a). Each deponent states in paragraph one of their affidavit that they are a member of the native title claim group. There is no dispute about that fact in this instance.
[161]	In view of the note following s 190C(4)(b) that refers to the definition of ‘authorise’ in s 251B, I consider the material must speak to the matters prescribed by the definition. In summary, s 251B provides that an applicant’s authority from the rest of the native title claim group to make an application must be given in one of two ways:
(a)	in accordance with any traditional process mandated for authorising ‘things of this kind’ (i.e. authorising an applicant to make a native title determination application), where one exists; or
(b)	in any other case, by an agreed or adopted process in relation to authorising things of that kind.
[162]	Attachment A is a document setting out the outcomes of the two meetings held on 6 July 2019. It describes the way the meetings were conducted and what took place at each one. Regarding the first meeting, Attachment A confirms that the second resolution carried unanimously by the persons in attendance was that there is no decision-making process under their traditional laws and customs that must be used for making decisions of the kind relating to native title determination applications. The third resolution, also carried unanimously, was that the group agreed to and adopted a process of decision-making involving a majority vote by show of hands. Regarding the second meeting, Attachment A provides that the group resolved to agree to resolutions two and three (and others) as passed at the first meeting. The information in Attachment A demonstrates that the remaining resolutions at the second meeting were passed using the agreed to and adopted decision-making process resolved at the first meeting. 
[163]	In my view, this information is sufficient in addressing the requirement of s 251B.
[164]	Where it is an agreed to and adopted decision-making process at a meeting of the native title claim group that is the basis of the applicant’s authority, there is no requirement that all the persons in the native title claim group be involved. It is sufficient if a decision is made once the members of the group have been given every reasonable opportunity to participate in the decision-making process.
[165]	The material provides the following information relevant to how the meeting in Cloncurry on 6 July 2019 was notified:
•	two meetings took place on 6 July 2019 – the purpose of the first meeting was for the native title claim group as previously described to decide whether to amend the description of the group to include further apical ancestors; the second meeting was for the members of the newly described native title claim group to authorise the applicant to make an amended application reflecting the change to the description;
•	a notice for the proposed meetings was mailed out to 192 persons identified within a database held by the claim group’s legal representative as members of the Mitakoodi People;
•	the notice appeared in two newspapers relevant to the claim area and claim group, and on the Koori Mail website, approximately two weeks prior to the meetings;
•	one of the existing applicant persons confirmed she posted a copy of the notice on the Mitakoodi Cloncurry Facebook page approximately three weeks prior to the meetings;
•	the notice set out the purpose for each of the two meetings scheduled for 6 July 2019, and explained that the second meeting would only proceed where the persons in attendance at the first meeting decided to amend the claim group description;
•	the notice invited the former claim group to attend the first meeting, and set out the description of those persons;
•	the notice stated that the meeting would consider amending the claim group description, and set out the proposed change to the description;
•	the notice identified a contact person for persons wishing to attend to register their interest.
[166]	Public and personal notice of the meetings was provided to members of the native title claim group, two weeks prior to the meetings. The notice sets out the details for the meetings, the persons invited to attend, and explains the purpose of each of the two meetings. A contact person’s name and details are given to allow persons to register their intent to attend. From this, I consider that members of the group were able to become aware of the meeting, and able to make arrangements if they wished to attend. It follows that I am satisfied the way the meetings were notified gave members of the native title claim group every reasonable opportunity to participate in the decision-making process to authorise the applicant.
[167]	The crucial issue that arises in the present circumstances is whether all the persons who are jointly the applicant are authorised by the members of the native title claim group. As above, the application names seven persons as the applicant, and each of those persons has affirmed an affidavit pursuant to s 62(1)(a) that they are ‘authorised by all persons in the native title group to make the native title claim as amended by the resolutions passed’ on 6 July 2019. Two of those seven persons are Brian Douglas and Norman Douglas.
[168]	The resolution that is the source of the claim group’s authority for the applicant to make the amended application, carried by a majority at the second meeting on 6 July 2019, is identified in Attachment A as Resolution 3, under the sub-heading ‘Summary of Outcomes for Meeting 2’. Resolution 3 appears as follows:
1.	The Mitakoodi people are aboriginal people who:
(a)	Principally identify as Mitakoodi people and as belonging to the traditional country of their Mitakoodi forebears;
(b)	Are recognised by other Mitakoodi people as the biological descendants of deceased Mitakoodi people; and
(c)	Are the descendants of the following deceased aboriginal people:
Minnie; Thomas ‘Tiger’ Mitchell; Dinah; Topsy and Sophie.
2.	That either Norman or Brian Douglas resign as an Applicant.
3.	Subject to clause 4 and without changing the existing terms of the appointment, the Applicants are authorised to continue to prosecute the Native Title Claim as amended by this resolution.
4.	Upon receipt of any resignation in accordance with paragraph 2 of this resolution, the remaining Applicants are authorised to continue prosecuting the Native Title Claim in its amended form.
5.	There should [be] no further changes to the Applicant and the meeting expresses the desire that all the Applicants work together to achieve a native title determination for the Mitakoodi people as soon as possible. 
[169]	From the wording of the resolution, I considered there was uncertainty regarding whether I could be satisfied that an applicant that included both Norman and Brian Douglas was authorised by the native title claim group. Both Norman and Brian Douglas are named as applicants in the Form 1 before me, and both have affirmed an affidavit pursuant to s 62(1)(a) that they are ‘authorised by all persons in the native title group to make the native title claim as amended’. Having approached the applicant on this issue, in response to my concerns (the response is set out in the authorisation submissions), the applicant explains that clause 2 of the resolution ‘should read as saying either Norman or Brian be asked to resign as an Applicant.’ 
[170]	The applicant submits the claim group’s intention was that the authority of the applicant persons was not dependent upon a resignation from either Norman or Brian. The applicant submits that the word ‘resign’ speaks to a voluntary action, and that as neither Norman nor Brian were present at the second meeting, there was no intent by the claim group at the second meeting that a resignation be a ‘precondition to authorisation.’  
[171]	The information provided by the applicant explains that many members of the claim group did not stay for the second meeting. The applicant submits that ‘this is probably because one could be forgiven for taking the view that the claim group had already dealt with the issue of authorising the Applicants to continue by passing Amended Resolution 8 of Meeting 1 which states that “the Applicants are authorised through their Legal representative to amend the claim group [sic] the Mitakoodi Native Title Determination Application (QUD 556/2015).”’ The applicant further submits that ‘to the extent of any ambiguity, the resolutions passed at the first meeting are a much more reliable indicator of the intention of the claim group than those of the second meeting.’
[172]	The applicant also refers to the decision in Butchulla, where Kiefel J held that the authority given by the claim group is directed to each of the individual applicant persons rather than given collectively, such that ‘the inability of one to continue does not affect the authorisation of the others.’ 
[173]	In Doolan, this principle was affirmed by the Court. Spender J held that ‘applicant’ in s 190C(4) ‘is a reference to each person and cannot be the group of persons who jointly make up the ‘applicant’.’ His Honour further commented that ‘an appointment of a group of persons jointly to be an ‘applicant’ by a meeting of the native title claim group is an authorisation for the named persons to act, or so many of them as remain willing and able to act.’
[174]	More recently, the Court considered the role of the applicant in McGlade, referring to the decisions in Butchulla and Doolan as authorities for the proposition that ‘the death or incapacity of one member of the applicant does not prevent the remaining members from taking action in relation to the application.’ 
[175]	In these factual circumstances, however, I do not find these authorities particularly helpful. That is because this situation can be distinguished on the basis that rather than there being applicant persons unable or unwilling to act, there are persons the material suggests do not have the authority of the claim group, but who are named as applicant persons and who depose in an affidavit accompanying the application that they ‘consider’ they are authorised by the group.
[176]	In Butchulla, I note Kiefel J concluded that the authorisation of the applicant ‘will continue until revoked’ or until that person is no longer willing or able to act. The question I understand is the focus of my consideration in determining whether the requirements of s 190C(4)(b) are met, is whether Norman and Brian Douglas have the authority of the claim group to make the amended application despite, or in light of, the wording of Resolution 3 at the second meeting.
[177]	I do not accept the applicant’s submissions that the resolutions passed at the first meeting are a more reliable indicator of the intention of the claim group. This is because the first meeting was not the meeting of the ‘native title claim group’, as described in Schedule A of the amended application before me, where that group of persons considered the giving of authority to applicant persons. In the same way, the suggestion that many claim group members had left the venue prior to decisions being made at the second meeting, due to the fact they were of the view the authorisation of the applicant had already been dealt with at the first meeting, I consider to be conjecture only, and not relevant to my consideration of the decisions made at the second meeting, which is the basis of the applicant’s authority.
[178]	Attachment A explains that at the second meeting that day, following the passing of the first two resolutions, the Chair of the meeting read out the proposed Resolution 3. The last sentence of that proposed resolution read: ‘And the Applicants are authorised to continue to prosecute the Native Title Claim in its amended form.’ Attachment A then states ‘[t]here was general discussion about the last part of the resolution’, that the ‘Chair adjourned the meeting’, and ‘the meeting resumed at 3.45pm.’ Attachment A then sets out the wording of the revised Resolution 3 (set out above) and provides that the resolution was carried by majority.
[179]	The CH affidavit gives more detail regarding what took place prior to the passing of Resolution 3. The deponent states ‘when it came time to discuss [the resolution], some claim group members expressed concern that there were two applicants descended from Topsy represented by the one family (Norm and Brian Douglas).’ The affidavit further provides: ‘A member noted that neither Brian nor Norman were present at the meeting and another member expressed the view that Kay Douglas should approach both them [sic] after the meeting to see whether either of them were prepared to resign. As a result the proposed [resolution] was not proceeded with.’
[180]	The applicant’s legal representative explains that following re-drafting of the resolution during the adjournment, and the new resolution being read out to those in attendance upon recommencing the meeting, he:
…explained the new resolution was designed to approve the amendments to the claim group description passed at the last meeting, incorporate a request that either Norm or Brian Douglas resign, in the event that a resignation was received authorise the remaining applicants to prosecute the amended claim, and subject to the receipt of any resignation from Brian or Norman Douglas authorise the existing applicants to prosecute the amended claim. I specifically made it clear that the resolution would authorise the existing applicants to prosecute the claim in the absence of any resignation from Brian or Norm Douglas…   
[181]	The affidavits affirmed by Brian and Norman Douglas set out their understanding of the meeting outcomes. Both affidavits are in the same terms, and provide:
As a result of the decisions made at the authorisation meetings, I consider that I am authorised by all persons in the native title claim group to make the native title claim as amended by the resolutions passed that day and to deal with matters arising in relation to it. I refer to resolution 3 […], I say that I continue to be authorised as an applicant and I do not agree that the meeting intended my authority as an applicant to be conditional upon my brother resigning nor do I accept that the authority of the other applicants is subject to this precondition.  
[182]	In their affidavits, the remaining applicant persons depose that they consider they are authorised by the claim group, and do not agree that their authority is conditional upon the resignation of Norman or Brian. Their affidavits do not, however, give any indication of whether the group intended for the authority of Brian and Norman to be dependent on one or the other resigning. 
[183]	On 22 October 2019, the same date the applicant provided the authorisation submissions, the Senior Officer received two emails, both from persons identifying themselves as members of the native title claim group. The Senior Officer was copied into these emails, however they were addressed to [Name removed], the legal representative for the Mitakoodi People. In summary, the emails request that [Name removed] convene an authorisation meeting pursuant to s 66B. I understand that this request is made on the basis that the group wish to effect the removal of Brian or Norman Douglas as an applicant person. One of the emails states: ‘It is also a responsibility of yours to ensure that actions from meetings are implemented including the resignation of Brian or his brother, and not rely on Kay [Douglas]. We request that a S66B Authorisation meeting be held as soon as possible.’ As noted above, the applicant’s legal representative did not respond to the opportunity provided to comment in relation to these submissions.
[184]	While the applicant’s legal representative clearly asserts that the group did not intend the authority of the applicant to be dependent on the resignation of either Brian or Norman Douglas, having considered all of the information before me, I have reached the view that I cannot be satisfied the applicant, being seven persons who include both Norman and Brian Douglas, is authorised by all the persons in the native title claim group to make the amended application. 
[185]	The material indicates it was the group’s intention that the remaining five applicant persons were given authority to make the amended application, however there is a measure of uncertainty surrounding whether the group intended for the authority previously given to Norman and Brian Douglas to continue for the purposes of making the amended application. As above, this is not a situation where there is an applicant person unwilling to act such that the authority of the remaining applicants can continue and allow them to deal with the application. Both Norman and Brian depose their willingness to act as applicants. 
[186]	In my view, the wording of Resolution 3 is ambiguous and despite the submissions of the applicant’s legal representative, may be understood as reflecting the group’s intention that the authority of the applicant rests on one of the two brothers resigning. I consider clause two of Resolution 3 may be understood as a relatively clear expression of the group’s intention, and that the wording of clause four of Resolution 3 may be understood as evidencing the fact that the authority of the remaining applicant persons only arises upon the receipt of a resignation.
[187]	Notwithstanding this, I consider the emails sent by members of the claim group to [Name removed] around the time the submissions were provided suggest at least some of the group had a clear intention that one of the brothers be removed as an applicant person. 
[188]	In considering the application at s 190C(4)(b), I must be satisfied of the fact of authorisation. In light of the uncertainty revealed by the material before me regarding the authority of Norman and Brian Douglas, and the intention of the claim group in this regard, I cannot be satisfied of the fact of authorisation of the applicant to make the amended application by all the persons in the group.
[189]	The requirement at s 190C(4)(b) is not met.      
End of reasons

Attachment A
Summary of registration test result
Application name	Mitakoodi People #5	
NNTT No.	QC2015/009	
Federal Court of Australia No.	QUD556/2015	
Date of decision	8 November 2019	
Section 190B conditions
Test condition	Sub-condition/requirement	Result	
Section 190B(2)		Met	
Section 190B(3)		Overall result:
Met	
Section 190B(4)		Met	
Section 190B(5)		Aggregate result:
Met	
Section 190B(6)		Met	
Section 190B(7)		Met	
Section 190B(8)		Aggregate result:
Met	
Section 190B(9)		Aggregate result:
Met	
Section 190C conditions
Test condition	Sub-condition/requirement	Result	
Section 190C(2) 		Aggregate result:
Not met	
	Section 61(1)	Not met	
	Section 61(3)	Met	
	Section 61(4)	Met	
	Section 62(1)(a)	Not met	
	Section 62(1)(b)	Aggregate result:
Met	
Section 190C(3)		Met	
Section 190C(4)		Overall result:
Not met	
	Section 190C(4)(a)	NA	
	Section 190C(4)(b)	Not met