Registration Decision

Application name	Brandon McNamara & Ors and the State of South Australia (Barngarla Southern Eyre Peninsula)	
Name of applicant	Brandon McNamara; Barry Croft; Jason Bilney; Emma Richards; Vera Richards; Lionel Richards; Kevin Richards	
Federal Court of Australia No.	SAD26/2020	
NNTT No.	SC2020/001	
Date of Decision	13 March 2020	

Claim not accepted for registration
I have decided the claim in the Barngarla Southern Eyre Peninsula 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), (9). It also does not satisfy ss 190C(2), (4).

	
Katy Woods

Reasons for Decision
Cases Cited
Anderson v Western Australia [2007] FCA 1733 (Anderson v WA)
Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625 (Aplin)
Attorney-General of the Northern Territory v Ward [2003] FCAFC 283 (Ward FC No 2) 
Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 (Bolton)
Corunna v Native Title Registrar [2013] FCA 372 (Corunna)
De Rose v State of South Australia (No 2) [2005] FCAFC 110 (De Rose FC No 2)
Drury v Western Australia (2000) 97 FCR 169; [2000] FCA 132 (Drury) 
Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177 (Warrie)
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 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 & 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)
Noble v Mundraby [2005] FCAFC 212 (Noble)
Northern Territory of Australia v Doepel [2003] FCA 1384 (Doepel)
Risk v National Native Title Tribunal [2000] FCA 1589 (Risk)
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 v Northern Territory) 
Ward v Registrar, National Native Title Tribunal (1999) 168 ALR 242; [1999] FCA 1732 (Ward v Registrar)
Western Australia v Native Title Registrar (1999) 95 FCR 93; [1999] FCA 1591 (WA v NTR)
Western Australia v Ward (2002) 213 CLR 1 (Ward HC)
Wiri People v Native Title Registrar [2008] FCA 574 (Wiri People)
Background
[1]	The claim in this application is made on behalf of the Barngarla native title claim group (claim group). The application covers an area in South Australia of approximately 2,200 square kilometres to the south of Port Lincoln, extending into the waters of the Spencer Gulf (application area).
[2]	The application was filed on 19 February 2020 and the Registrar of the Federal Court (Court) gave a copy of the application to the Native Title Registrar (Registrar) that same day, pursuant to s 63. This referral has triggered the Registrar’s duty to consider the claim made in the application for registration in accordance with s 190A. In accordance with s 190A(6), I must accept the claim for registration if it satisfies all the conditions in ss 190B–190C. 
[3]	As discussed in my reasons below, I consider that the claim in the application does not satisfy all of the conditions in ss 190B–190C and therefore it must not be accepted for registration. Attachment A contains a summary of my decision.
Procedural fairness
[4]	On 25 February 2020, a senior officer of the Tribunal (senior officer) wrote to the relevant minister of the State of South Australia (State) advising that I would be considering the information in the application in my decision, and should the State wish to supply any information or make any submissions, it should do so by 3 March 2020. 
[5]	Also on 25 February 2020, the senior officer wrote to the representative of the applicant and advised there were deficiencies in the application which in my preliminary view would prevent the claim from passing the registration test, and invited the applicant to provide any additional material for my consideration by 3 March 2020. 
[6]	No information or submissions were received from the State or the applicant, and so this concluded the procedural fairness process.
Information considered
[7]	I have considered the information in the application. 
[8]	I have considered information contained in a geospatial assessment and overlap analysis of the application area prepared by the Tribunal’s Geospatial Services dated 24 February 2020 (geospatial report) and information available in the Tribunal’s geospatial database in relation to locations mentioned in the application.
[9]	I have considered information in the Register of Native Title Claims (Register) to ascertain whether the application satisfies s 190C(3).
[10]	There is no information before me from searches of State or Commonwealth interest registers, and as noted above, the State has not supplied any information as to whether the registration test conditions are satisfied in relation to this claim. 
Section 190C: conditions about procedures and other matters
Information etc. required by ss 61–2 – s 190C(2): condition not met
[11]	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. I have not addressed s 61(5) as I consider the matters covered by that condition are matters for the Court.
[12]	The application contains the details specified in s 61:
Section	Details 	Information	Result	
s 61(1)	Native title claim group have authorised the applicant	Part A, Schedule A, s 62 affidavits, Schedule R, Attachment R1	Met	
s 61(3)	Name and address for service 	Part B	Met	
s 61(4)	Native title claim group named/described 	Schedule A	Met	
[13]	The application does not contain all the information specified in s 62:
Section	Details 	Information	Result	
s 62(1)(a)	Affidavits in prescribed form	Section 62 affidavits filed with application 	Not met	
s 62(2)(a)	Information about the boundaries of the area	Schedule B, 
Attachments B1 and  B2	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 	Schedule F, 
Attachment 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	Met	
Section 62(1)(a)
[14]	There are no affidavits from Mr Brandon McNamara and Ms Emma Richards who are named as members of the applicant on the Form 1. The application is accompanied by an affidavit from the solicitor for the claim group, which states that Mr McNamara was unable to depose an affidavit; and Ms Richards has instructed that she seeks to resign as a member of the applicant.
[15]	I understand from Drury that there are certain circumstances where an amended application does not require fresh affidavits, such as the reduction of the application area.  As this is a new application, I consider that the provision of affidavits in the prescribed form from all the members of the applicant is a mandatory requirement which the Registrar is not empowered to overlook. 
Conclusion
[16]	As the application does not contain all of the prescribed details and other information, as required by ss 61–2, s 190C(2) is not met.
No previous overlapping claim group – s 190C(3): condition met
[17]	To meet s 190C(3), the Registrar must be satisfied that no person included in the claim group for 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 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.
[18]	The geospatial report states that the application is overlapped by the Nauo No. 2 application (SAD188/2016) by approximately 73%.  Given this overlap, s 190C(3)(a) is met.
[19]	According to the Register, the claim in the Nauo No. 2 application was considered for registration and entered on the Register 6 July 2017, and has not been removed. This means that ss 190C(3)(b)–(c) are met and so Nauo No. 2 meets the definition of a ‘previous application’.
[20]	I must therefore consider whether this application and the Nauo No. 2 application have common claimants. I have compared the Register extract for Nauo No. 2 with the claim group description which appears in Schedule A of the application before me. I have also compared the names of the applicant members in both applications. There are no obvious similarities which would indicate that the two applications have claimants in common.
Conclusion
[21]	I am satisfied that no member of the claim group for the current application was also a member of the native title claim group for the identified previous application, and so s 190C(3) is met. 
Identity of claimed native title holders – s 190C(4): condition not met
[22]	To meet s 190C(4), the Registrar must be satisfied: 
(a)	the application has been certified under Part 11 by each representative Aboriginal/Torres Strait Islander body that could certify the application in performing its functions under that Part; 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.
[23]	Schedule R indicates that the application is not certified and so I understand that I must assess the application against the requirements of s 190C(4)(b).
What is required to meet s 190C(4)(b)?
[24]	Section 190C(4)(b) contains two limbs, both of which must be satisfied:
(a)	that the applicant is a member of the claim group; and
(b)	that the applicant is authorised to make the application, by all the other members of the claim group. 
[25]	Following s 190C(4)(b) there is a note in the Native Title Act referring to the definition of ‘authorising the making of applications’ in s 251B. That provision stipulates that all the persons in a claim group authorise a person to make an application and to deal with matters arising in relation to it, where one of the following processes of decision-making is utilised:
(a)	a process which, under the traditional laws and customs of the persons in the claim group, must be complied with, or 
(b)	where there is no traditional process, a process agreed to and adopted by the claim group.
[26]	The case law also confirms that s 190C(4)(b) requires consideration of whether the native title holders have authorised the applicant to make the application in accordance with s 251B. 
[27]	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) 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.
[28]	I therefore understand that in order to be satisfied that s 190C(4)(b) is met, one of the decision-making processes outlined in s 251B must be identified and complied with, and the requirements of s 190C(5) must also be met.
Summary of the authorisation material
[29]	The information before me which is relevant to this condition is found in:
(a)	The s 62 affidavits from five of the seven members of the applicant which accompany the application (s 62 affidavits); 
(b)	Schedule R; and 
(c)	Attachment R.
Does the application satisfy s 190C(5)?
[30]	Schedule R states that each member of the applicant is a member of the Barngarla Native Title Claim Group and is authorised to make the application by all the other persons in the claim group.  Schedule R further states that the applicant was authorised by the claim group at a meeting on 4 August 2019 in Port Lincoln (authorisation meeting).
[31]	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.’ I therefore consider that the information contained in Schedule R is sufficient to satisfy both limbs of s 190C(5). 
Does the application satisfy s 190C(4)(b)?
[32]	Firstly, I must be satisfied the persons comprising the applicant are members of the claim group. As discussed above at s 190C(2), the application is not accompanied by affidavits from every member of the applicant named on the Form 1. Attachment R contains the resolutions passed by the claim group at the authorisation meeting and Resolution 4 provides that the applicant will comprise ‘7 Barngarla persons’. There is no information before me to suggest that the seven persons referred to are people other than the members of the applicant named in the Form 1. I am therefore satisfied all the persons comprising the applicant are members of the claim group. 
[33]	Secondly, I must be satisfied that the applicant is authorised to make the application, by all the other members of the claim group. As part of this task I am required to identify the decision-making process used by the claim group and how it was applied. 
Which decision-making process under s 251B has been identified?
[34]	The s 62 affidavits state that the claim group agreed to and adopted a process of decision-making to authorise the applicant. I therefore consider the application identifies the type of decision-making process described in s 251B(b).
How was the identified decision-making process applied to authorise the applicant?
[35]	In order to be satisfied that the necessary authorisation has been given by the claim group in accordance with the identified decision-making process, I must inquire through the material available to the Registrar. Attachment R provides information about the authorisation meeting, including:
(a)	Participants were identified as either ‘green’ or ‘blue’;
(b)	‘Green’ claim group members are also members of the ‘Barngarla Determination Aboriginal Corporation RNTBC’ (RNTBC);
(c)	‘Blue’ claim group members are not members of the RNTBC;
(d)	‘Blue’ and ‘green’ votes are weighted equally;
(e)	The attendees agreed to adopt a decision-making process by majority decision (Resolution 1); and
(f)	Using the agreed to and adopted decision-making process, the claim group authorised the seven members of the applicant to make the application (Resolution 6).
[36]	In Anderson v WA, French J confirmed that it is important that the claim group as a whole had adequate notice of the authorisation meeting and its terms.  I can find no information in the application or accompanying documents about how the members of the claim group were notified of the authorisation meeting.  I understand that without information to show how the members of the claim group were given every reasonable opportunity to participate in the decision to authorise the applicant to make the application, s 190C(4)(b) will not be met. 
[37]	In Ward v Northern Territory, O’Loughlin J held that the substance of the below questions about an authorisation meeting must be addressed:
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? 
[38]	In my view, the information in before me does not sufficiently address the substance of the above questions. There is no information about who convened or attended the meeting, or (as discussed above), to whom notice of the meeting was given. In the absence of sufficient information about the notice and conduct of the authorisation meeting, s 190C(4)(b) will not be met.
Conclusion
[39]	Although I am satisfied that s 190C(5) is met and that the applicant members are all members of the claim group, I am not satisfied those persons are authorised by all the other members of the claim group to make the application. This means that 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
[40]	To meet s 190B(2), the Registrar must be satisfied the information and map contained in the application are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters.
[41]	I understand the questions for this condition are whether the information and map provide 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. 
Does the information about the external boundary meet this condition?
[42]	Schedule B refers to Attachment B1 and Attachment B2. Attachment B1 describes the application area with reference to:
(a)	the Great Australian Bight;
(b)	the following native title determinations applications:
1.	SAD6021/1998 Nauo Native Title Claim (SC1997/008);
2.	SAD188/2016 Nauo No. 2 (SC2016/003); 
3.	SAD6011/1998 Barngarla (SCD2016/001); and 
(c)	Geographical coordinates to six decimal places. 
[43]	Schedule C refers to Attachment C, which contains a map prepared by Geospatial Services titled ‘Barlgarla [sic] South Eyre Sea Claim’. The map is dated 30 May 2019 and includes:
(a)	The application area depicted by bold dark blue outline
(b)	Topographic background showing place names, roads and waterbodies 
(c)	Scalebar, location diagram and coordinate grid
(d)	Notes relating to the source, currency and datum of data used to prepare the map.
[44]	The assessment in the geospatial report is that the map and description are consistent and identify the application area with reasonable certainty. I have considered the map and description and I agree with that assessment.
Does the information about excluded areas meet this condition?
[45]	Attachment B2 lists the areas which are excluded from the application in general terms, such as areas subject to previous exclusive possession acts. Attachment B2 also states that the application does not cover any area where native title has been extinguished, except where any extinguishment is required to be disregarded by force of ss 47–47B.
[46]	Justice French has commented that ‘it is unrealistic to expect a concluded definition of the areas subject to these provisions to be given in the application. Their applicability to any area will require findings of fact and law to be made as part of the hearing of the application’. Following this reasoning, I am satisfied the areas affected by the general exclusion clauses can be ascertained at the appropriate time. 
Conclusion
[47]	As I consider that both the external boundary and the excluded areas of the application can be identified with reasonable certainty, I am satisfied that s 190B(2) is met.
Identification of the native title claim group – s 190B(3): condition met
[48]	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. 
[49]	I understand 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’. I am not required or permitted to be satisfied about the correctness of the description at this condition. My consideration at this condition is also limited to information in the application.
[50]	Schedule A states:
Under the relevant traditional laws and customs of the Barngarla People the group of persons holding the common or group rights are those Barngarla People: 
(a)	who are related by means of the principle of descent to the following Barngarla apical ancestors: [list of apical ancestors]; and
(b)	who have a connection with the Area in accordance with the traditional laws and customs of the Barngarla People; and
(c)	who identify as a Barngarla person and who are accepted by the Barngarla People as a Barngarla person.
(Barngarla Native Title Claim Group) 
[51]	It follows from the description that s 190B(3)(b) is applicable. I am therefore required to be satisfied that the persons in the claim group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group. 
Is the description sufficient to ascertain the members of the claim group?
Descent
[52]	From the above description, I understand that the first criterion an individual must meet is being a descendant of one of the named ancestors. The Court has previously held that describing a claim group with reference to descent from named ancestors satisfies the requirements of s 190B(3)(b). I consider that requiring a person to show descent from an identified ancestor provides a clear starting point to commence an inquiry about whether a person is a member of the claim group. I consider that factual enquiries would lead to the identification of the people who meet this criterion. 
[53]	The description does not specify whether ‘descendants’ is limited to biological descendants or includes descendants by adoption, however Schedule A does reference the ‘relevant traditional laws and customs of the Barngarla People’. I consider it is by that ‘set of rules or principles’ that it could be ascertained whether the claim group includes descendants by adoption. In reaching this view I have also considered the judicial guidance that is appropriate to construe the requirements of the Native Title Act beneficially.
Connection
[54]	Paragraph (b) of the claim group description requires an individual to demonstrate a connection to the application area, in accordance with the group’s traditional laws and customs.  Unlike the criterion in paragraph (a), this criterion is subjective. Noting that ‘[a]s to substantive matters concerning membership, the claim group must act in accordance with traditional laws and customs’, I consider that enquiries to both the individual in question and to other members of the claim group would reveal whether the individual had an appropriate connection to the application area. 
Self-identification and acceptance
[55]	Paragraph (c) of the claim group description specifies that the members must ‘identify as a Barngarla person’. In my view, this criterion is also subjective. The Court has previously held that a person must identify themselves as a member of the particular claim group ‘either by assertion or by virtue of the way in which he or she conducts him or herself’. I therefore consider that determining whether a person identifies as a member of the Barngarla People could be ascertained by undertaking factual enquiries with the individual in question. 
[56]	Paragraph (c) further specifies that the descendants of the named ancestors, who have a connection to the application area and who identify as Barngarla, must also be accepted as Barngarla by other Barngarla people. The Court has previously held that membership of a claim group must be based on group acceptance. In my view, this criterion is also subjective. I consider that by making enquiries to the other claim group members, it will be possible to identify the people who are recognised as members of the claim group.
Conclusion
[57]	I am satisfied the application describes the persons in the claim group sufficiently clearly such that it can be ascertained whether any particular person is a member of the group as required by s 190B(3)(b). This means s 190B(3) is met. 
Identification of claimed native title – s 190B(4): condition met
[58]	To meet s 190B(4), the Registrar must be satisfied the description contained in the application is sufficient to allow the claimed native title rights and interests to be identified. I have not considered whether the rights and interests claimed are ‘native title rights and interests’ in accordance with s 223, as I understand that is part of the task at s 190B(6), where I must decide whether each of the claimed rights is established as a native title right on a prima facie basis. I note that my consideration of this condition is confined to information found in the application.
Does the description of native title rights and interests meet this condition?
Exclusive Possession
[59]	From the description in paragraph 1 of Schedule E, I understand that exclusive possession is claimed in areas within the application area where s 47 or s 47A apply. I understand that a broad claim to exclusive possession such as this does not offend s 190B(4).
Non-exclusive rights
[60]	From the description in paragraph 2 of Schedule E, I understand that the listed non-exclusive rights are claimed in parts of the application area where s 47 or s 47A do not apply. In my view, the non-exclusive rights form an exhaustive list, and there is no inherent or explicit contradiction within the description.
Qualifications
[61]	Paragraph 3 states that the claimed rights do not include the right to trade in, or the commercial use of, the application area or its resources.  Paragraph 4 confirms that the non-exclusive rights described in paragraph 2 do not confer possession, occupation, use and enjoyment of the application area to the exclusion of all others. Paragraph 5 states that the claimed rights are exercisable in accordance with the claim group’s traditional laws and customs, the valid rights of other interest holders, the valid laws of the State and the Commonwealth, and the common law. 
Conclusion
[62]	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
[63]	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 claim group have, and the predecessors of those persons had, an association with the area; and
(b)	that there exist traditional laws acknowledged by, and traditional customs observed by, the claim group that give rise to native title rights and interests; and
(c)	that the claim group have continued to hold the native title in accordance with those traditional laws and customs. 
[64]	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’. Therefore I have not undertaken any searches for external material to support the applicant’s claim.
What information has been provided to support the assertions at s 190B(5)?
[65]	As discussed above at s 190B(4), Schedule E contains a list of rights and interests claimed by the claim group. Schedule F states:
The factual basis of the claim is as follows[:] 
(a)	The Barngarla Native Title Claim Group and their ancestors have, since British sovereignty was asserted over the application area, possessed, occupied, used and enjoyed the area which is the subject of this native title claim;
(b)	The Barngarla Native Title Claim Group's right to such possession, occupation, use and enjoyment is derived from and is currently held in accordance with traditional laws and customs acknowledged and observed, including as they relate to the transmission of such rights and interests by descent;
(c)	The native title has been held and continues to be held in accordance with those traditional laws and customs by the Barngarla Native Title Claim Group.
[66]	Schedule G states:
Members of the Barngarla Native Title Claim Group currently continue to:
(a)	reside in the application area;
(b)	camp in certain parts of the application area;
(c)	travel through the application area;
(d)	hunt and gather, prepare bush tucker and cook bush tucker caught in the application area;
(e)	fish and gather from the sea adjacent in the application area;
(f)	seek to protect sites and wildlife in the application area;
(g)	protect and preserve culture, heritage and knowledge of the application area;
(h)	visit the application area with children and pass on knowledge culture and tradition to such children;
(i)	conduct meetings on the application area;
(j)	maintain and protect the natural environment;
(k)	protect aboriginal sites in the application area from damage;
(l)	utilise the application area to obtain bush medicines.
[67]	Schedule M, which asks the applicant to outline the traditional physical connection which the claim group members have with the application area, has not been provided.  I am therefore of the view that the factual basis material is limited to the information found in Schedules E, F and G.
Is the factual basis sufficient to support the assertions of s 190B(5)?
Section 190B(5)(a)
[68]	To meet s 190B(5)(a), the factual basis must be sufficient to show:
(a)	the claim group presently has an association with the application area, and the claim group’s predecessors have had an association with the application area since sovereignty or European settlement;
(b)	there is ‘an association between the whole group and the area’, although not ‘all members must have such association at all times’; and
(c)	there is an association with the entire area claimed, rather than an association with only part of it or ‘very broad statements’, which have no ‘geographical particularity’.
[69]	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 possession and occupation of the area in Schedule F, cited above. 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.
Section 190B(5)(b)
[70]	To meet s 190B(5)(b), the factual basis must be sufficient to support an assertion that there exist traditional laws acknowledged and traditional customs observed by the claim group that gives rise to the claim to native title rights and interests. ‘Native title rights and interests’ is defined in s 223(1)(a) as those rights and interests ‘possessed under the traditional laws acknowledged, and traditional customs observed,’ by the native title holders. 
[71]	In Yorta Yorta the plurality of the High Court held that a ‘traditional’ law or custom is one which has been passed from generation to generation of a society, usually by word of mouth and common practice. The High Court further held that in the context of the Native Title Act, ‘traditional’ also carries two other elements, namely:
[I]t conveys an understanding of the age of the traditions: the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown. It is only those normative rules that are "traditional" laws and customs;
[T]he normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty. If that normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist.
[72]	In Warrie, the Full Court held that:
Where a rule, or practice or behaviour in relation to the identified land and waters arises from traditional law, and has normative content, then it can be capable of satisfying para (a) of s 223(1);
[A] claim group must establish that the traditional law and custom which gives rise to their rights and interests in that land and waters stems from rules that have a normative character, there is no further gloss or overarching requirement, and no further rigidity. The Native Title Act in terms does not require establishment of some overarching “society” that can only be described in one way and with which members of a claim group are forever fixed in relation to any other land and waters over which they assert native title.
[73]	In Gudjala 2009, Dowsett J held that if descent from named ancestors is the basis of membership of the group, the factual basis must demonstrate some relationship between those ancestors and the pre-sovereignty society from which the laws and customs of the claim group are derived.
[74]	I therefore understand my assessment of the sufficiency of the factual basis under s 190B(5)(b) requires the identification of:
(a)	a link between the pre-sovereignty society, the apical ancestors and the claim group in the application area; and
(b)	the continued observance of normative rules by the successive generations of the claim group, such that the normative rules can be described as ‘traditional laws and customs’.
[75]	In my view, there is an insufficient factual basis to show a link between a pre-sovereignty society, the apical ancestors and the claim group. I consider the broad statements in Schedule F to be ‘at a high level of generality’. 
[76]	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.
Section 190B(5)(c)
[77]	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. It also requires a sufficient factual basis to support an assertion that there has been continuity in the observance of traditional laws and customs going back to sovereignty or at least to European settlement.
[78]	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.
Conclusion
[79]	I am not satisfied that the claim group has, or its predecessors had, an association with the application area. I am not satisfied that there exist traditional laws acknowledged and traditional customs observed by the claim group which give rise to the claimed rights and interests, or that there has been continuity of the observance of such traditional laws and customs by the claim group. This means that s 190B(5) is not met. 
Prima facie case – s 190B(6): condition not met
[80]	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 claim group.
[81]	As discussed above at s 190B(5)(b), I am not satisfied that the factual basis is sufficient to support the assertion that 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’. This means s 190B(6) is not met.
Traditional physical connection – s 190B(7): condition not met
[82]	To meet s 190B(7), the Registrar must be satisfied 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.
[83]	In Gudjala 2009, Dowsett J observed that it ‘seems likely that such connection must be in exercise of a right or interest in land or waters held pursuant to traditional laws and customs’. Applying this guidance and given my finding at s 190B(5)(b), that I am not satisfied of the existence of traditional laws and customs, I cannot be satisfied that any member of the claim group holds, or previously held, the requisite physical connection with the application area in accordance with traditional laws and customs. This means s 190B(7) is not met.
No failure to comply with s 61A – s 190B(8): condition met
[84]	In my view the application complies with the provisions of ss 61A(1)–(3) and therefore satisfies the condition of s 190B(8):
Section	Requirement	Information 	Result	
s 61A(1)	No native title determination application is approved determination of native title	The geospatial report states and my own searches confirm that the application does not cover an area where there has been an approved determination of native title.	Met	
s 61A(2)	Claimant application not to be made covering previous exclusive possession act areas	Attachment B2, paragraph 2(a)–(b) states that the application does not cover areas where a previous exclusive possession act was done, including freehold estates and exclusive pastoral leases.	Met 	
s 61A(3)	Claimant application not to claim possession to the exclusion of all others in previous non-exclusive possession act areas	Schedule E states that exclusive possession is only claimed where it can be recognised, such as areas where there has been no prior extinguishment of native title and where ss 47–47B and s 238 apply. It follows that no claim to exclusive possession is made in previous non-exclusive possession act areas.	Met 	

No extinguishment etc. of claimed native title – s 190B(9): condition not met
[85]	In my view the application does not meet the requirements of s 190B(9):
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 does not contain any information and there is no statement in any other schedule to show that the claim excludes minerals, petroleum or gas wholly owned by the Crown.	Not met	
s 190B(9)(b)	Exclusive possession is not claimed over all or part of waters in an offshore place	Schedule P does not contain any information and there is no statement in any other schedule to show that the claim to exclusive possession does not extend over the offshore places of the application area.	Not met	
s 190B(9)(c)	Native title rights and/or interests in the claim area have otherwise been extinguished	Attachment B2 paragraph 3 states that the application does not cover areas where native title has been wholly extinguished. There is no information in the application that discloses to me that native title rights and interests in the claim area have otherwise been extinguished.	Met	

End of reasons

Attachment A
Summary of registration test result
Application name	Brandon McNamara & Ors and the State of South Australia (Barngarla Southern Eyre Peninsula)	
NNTT No.	SAD26/2020	
Federal Court of Australia No.	SC2020/001	
Date of decision	13 March 2020	

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)		Not met	

Section 190C conditions
Test condition	Sub-condition/requirement	Result	
s 190C(2) 	ss 61–2 	Not met	
S 190C(3)		Met	
s 190C(4)	s 190C(4)(a)–(b)	Not met