REGISTRATION TEST

REASONS FOR DECISION

DELEGATE:	Kristy Eulenstein

Application Name:		Wiri People Core Country Claim

Names of Applicant(s):	James Butterworth, Maurice Dallachy, Kenneth Dodd, Marilyn Duncan, Gregory Dunrobin, Eileen Beryl Pegler, Oswald Skeen, Graham Sauney, Frank Tiers, Linda Wailu, Ronald Watson.

Region: 		Queensland

NNTT No.: 		QC06/14

Federal Court No: 	QUD372 of 2006

Application Filed:		29 September 2006
Re-engrossed Application Filed:	18 December 2006

The delegate has considered the application against each of the conditions contained in s. 190B and s. 190C of the Native Title Act 1993 (Cwlth).

DECISION
The application is NOT ACCEPTED for registration pursuant to s. 190A of the Native Title Act 1993 (Cwlth).

_____________________________________________				19 January 2007  
Kristy Eulenstein 			 		Date of Decision
Delegate of the Registrar
Pursuant to Section 99 of the Native Title Act 1993 (Cwlth)
Preliminary Matters

In this document:
•	All references in this document to legislative sections refer to the Native Title Act 1993 (Cwlth) (‘the Act’ or ‘NTA’) unless otherwise specified.  
•	All references to the ‘Registrar’ refer to the Native Title Registrar under the Act, unless otherwise specified.  
•	All references to the ‘Tribunal’ or ‘NNTT’ refer to the National Native Title Tribunal under the Act, unless otherwise specified.
•	All references to ‘the application’ or ‘the current application’ refer to the re-engrossed application as filed on 18 December 2006, unless otherwise indicated.

Delegation pursuant to section 99 of the Act
On 28 November 2006, Christopher Doepel, the Native Title Registrar, delegated to certain named staff-members of the National Native Title Tribunal, including myself, all of the powers given to the Registrar under sections 190, 190A, 190B, 190C and 190D of the NTA.  This delegation has not been revoked as at this date. 

Background of the application
The application was filed in the Federal Court of Australia on 29 September 2006. A re-engrossed amended application was filed in the Federal Court on 18 December 2006 pursuant to the Order made by Dowsett J on 12 December 2006. It is the re-engrossed application which is the subject of these reasons.

Timeframe for decision due to section 29 notices
Section 190A(2) of the NTA provides:
If, either before the Registrar begins to do so or while he or she is doing so, a notice given under section 29 in relation to an act affecting any of the land or waters in the area covered by the application, the Registrar must use his or her best endeavours to finish considering the claim by the end of 4 months after the notification day specified in the notice.

The NNTT’s Geospatial Unit, upon receiving the original application filed September 2006,  undertook an assessment and overlap analysis of the claim area. The analysis, dated 6 November 2006 alerted the delegate to 43 section 29 or equivalent notices which fell within the external boundary of the application. Of those, 4 were current at the time of the assessment:

Tenement ID	Notification Date	s.190A(2) Decision Date	
EPC727	12/07/2006	12/11/2006	
AEL-EPC818	04/08/2006	04/12/2006	
EPM15494	20/09/2006	20/01/2007	
EPM15498	20/09/2006	20/01/2007	

Those s.29 notices remain relevant to the claim area of the re-engrossed application.

The matters below contributed to the fact that although the delegate used her best endeavours, she was unable to finalise consideration of the application by 12 November 2006 or 4 December 2006. 

o	The Registrar received a copy of the application from the Federal Court on 29 September 2006. The Geospatial Unit had difficulty mapping the Wiri Core Country Claim and requested, on 4 October 2006, spatial data from the applicant’s legal representative, the Central Queensland Land Council (CQLC). The spatial data was provided to NNTT on 23 October 2006. 
o	On 20 October 2006 the Registrar received a letter from D&G Lawyers, acting for members of the claimant group (including three persons who comprise the applicant for the application), requesting the registration testing of the Wiri Core Country Claim be delayed. On 23 October 2006 the letter was provided to CQLC, who responded on 31 October 2006. 
o	On 2 November 2006 and 3 November 2006 D&G Lawyers provided further information to the NNTT, including potentially adverse material, which needed to be sent to CQLC for comment. 
o	On 10 November 2006 the NNTT received further adverse material from D&G Lawyers, which was provided to CQLC on 13 November 2006. 
o	On 16 November 2006 CQLC was also provided with the delegate’s preliminary comments on the application. 
o	On 28 November 2006 CQLC requested that the registration testing of the application be deferred for one week, this request was granted. 

It should be noted that irrespective of the deferment granted 28 November 2006, the delegate using her best endeavours would have not been able to complete the consideration of the application by the 4 December 2006. 

Information relevant to the decision 
In making the following decision the delegate considered and reviewed the material as listed below.

Material on the current file for the application Wiri Core Country Claim (Federal Court No: QUD372/2006, NNTT No: QC06/14);
•	Claimant Application QUD372/2006 filed in Federal Court on 29 September 2006, including;
o	Affidavit of [Applicant 1 – name deleted], affirmed 20 September 2006.
o	Affidavit of [Applicant 2 – name deleted], affirmed 16 August 2006.
o	Affidavit of [Applicant 3 – name deleted], affirmed 16 August 2006.
o	Affidavit of [Applicant 4 –name deleted], sworn 19 September 2006.
o	Affidavit of [Applicant 5 – name deleted], affirmed 16 August 2006.
o	Affidavit of [Applicant 6 – name deleted], affirmed 16 August 2006.
o	Affidavit of [Applicant 7 – name deleted], sworn 20 September 2006.
o	Affidavit of [Applicant 8 – name deleted], affirmed 16 August 2006.
o	Affidavit of [Applicant 9 – name deleted], affirmed 16 August 2006.
o	Affidavit of [Applicant 10 – name deleted], sworn 21 September 2006.
o	Affidavit of [Applicant 11 – name deleted], affirmed 18 September 2006.
o	Report on Anthropological Fieldwork, [Anthropologist 1 – name deleted] and [Anthropologist 2 – name deleted], September 2006, including;
•	Statements from Interview with [Claimant 1 – name deleted].
•	Statements from Interview with [Applicant 1].
•	Statements from Interview with [Claimant 2 – name deleted].
•	Statements from Interview with [Claimant 3 – name deleted].
•	Statements from Interview with [Claimant 4 – name deleted].
•	Statements from Interview with [Claimant 5 – name deleted].
•	Statements from Interview with [Claimant 6 – name deleted].
•	Statements from Interview with [Applicant 5].
o	Supplementary Report, [Anthropologist 2], September 2006.
•	Re-engrossed Application QUD372/2006 filed in Federal Court on 18 December 2006.
•	Geospatial Assessment & Overlap Analysis (Reference: GeoTrack 2006/1870), produced by NNTT, dated 6 November 2006.
•	Geospatial Assessment & Overlap Analysis (Reference: GeoTrack 2006/1870), produced by NNTT, dated 9 November 2006.
•	Geospatial Assessment & Overlap Analysis (Reference: GeoTrack 2006/2331), produced by NNTT, dated 6 December 2006.
•	Geospatial Assessment & Overlap Analysis (Reference: GeoTrack 2006/2436), produced by NNTT, dated 5 January 2007.
•	Letter from CQLC to NNTT, dated 31 October 2006 (response regarding request for reg testing to be delayed).
•	Letter from CQLC to NNTT, dated 7 December 2006 (requesting deferring reg test).
•	Letter from CQLC to NNTT, dated 7 December 2006 (submissions re: D&G Lawyers).
•	Transcript of Federal Court Proceedings, Amendment of Wiri Core Country Claim QUD372 of 2006, 12 December 2006.
•	Federal Court Order, Wiri Core Country Claim QUD372/2006, 12 December 2006.
•	Federal Court Order, Wiri #2 QUD271/2006, 7 November 2006.
•	Federal Court reasons for judgement, Wiri #2 QUD271/2006, 10 November 2006.

Material received from D&G Lawyers on behalf of [Applicant 3], [Applicant 8], [Applicant 2], [Applicant 7], [Person 1 represented by D&G Lawyers – name deleted], [Person 2 represented by D&G Lawyers – name deleted], [Person 3 represented by D&G Lawyers – name deleted], [Person 4 represented by D&G Lawyers – name deleted], [Person 5 represented by D&G Lawyers – name deleted]
•	Letter from D&G Lawyers to NNTT, dated 20 October 2006 (requesting registration testing of WCCC be delayed), including;
o	Extract from Transcript of Federal Court Proceedings QUD6223/1998 on 19 May 2006.
o	Minutes of meeting held by CQLC of 16 August 2006.
o	Copy of review request submitted by D&G Lawyers to CQLC regarding certification of WCCC.
•	Letter from D&G Lawyers to NNTT, dated 2 November 2006 (submissions regarding request to delay), including;
o	Copy of letter from [Applicant 8] to CQLC, 30 September 2006.
o	Copy of letter from [Applicant 2] to CQLC, 30 September 2006.
o	Copy of letter from [Applicant 3] to CQLC, dated 30 September 2006.
o	Copy of letter from CQLC to D&G Lawyers, dated 27 October 2006.
•	Letter from D&G Lawyers, dated 3 November 2006, including;
o	Written request to defer registration test of WCCC, signed by [Applicant 3], [Applicant 8], [Applicant 7], dated 24 October 2006.
•	Letter from D&G Lawyers, dated 10 November 2006, including;
o	Affidavit of [Applicant 2], sworn 9 May 2006.
o	Statutory Declaration of [Applicant 7], sworn 13 May 2006.
o	Statutory Declaration of [Applicant 8], sworn 13 May 2006.
•	Letter from D&G Lawyers, dated 14 December 2006.

Material from older NNTT files concerning Wiri People
Wiri People (Federal Court No: QG6242/1998, NNTT No: QC98/05):
•	Facsimile from [Claimant 8 – name deleted] to NNTT, dated 23 February 2001, including:
o	Affidavit of [Applicant 3], sworn 15 February 2001;
o	Affidavit of [Applicant 8], sworn 17 February 2001;
o	Letter from [Applicant 4] to NNTT, undated.

Wiri People #2 (Federal Court No: QG6251/1998, NNTT No: QC98/11):
•	Amended Application QG6251/1998 filed in Federal Court on 4 October 1999, including;
o	Affidavit of [Applicant 7], affirmed 6 October 1999, filed in Federal Court 11 October 1999.
•	Letter from Federal Court to NNTT, dated 29 October 1999, including;
o	Affidavit of [Applicant 8], sworn 25 October 1999.
•	Facsimile from [Person 1 represented by D&G Lawyers ] to NNTT, dated 20 July 2006 enclosing;
o	Copy of letter from [Person 1 represented by D&G Lawyers] to CQLC re: Wiri Core Country Claim, dated 19 July 2006.

Wiri People #3 (Federal Court No: Q6033/1999, NNTT No: QC99/34):
•	Claimant Application Q6033/1999, filed in Federal Court 22 December 1999, including;
o	S. 62(1)(a) affidavit of [Applicant 6], sworn 17 November 1999.
o	Affidavit of [Applicant 6], sworn 17 November 1999.

Wiri People #4 (Federal Court No: Q6009/2001, NNTT No: QC01/08):
•	Claimant Application Q6009/2001, filed in Federal Court 20 March 2001, including;
o	Affidavit of [Applicant 5], sworn 15 March 2001.
o	Affidavit of [Applicant 8], sworn 15 March 2001.
o	Affidavit of [Applicant 6], sworn 16 March 2001.

Please note that information and materials provided in the context of mediation have not been considered in making this decision, due to the without prejudice nature of such conferences and the public interest in maintaining the inherently confidential nature of the mediation process. 

Note :
To be placed on the Register of Native Title Claims, the application must satisfy all the conditions in sections 190B and 190C of the Act. 
•	Section 190B sets out the merit conditions of the registration test
•	Section 190C sets out the procedural conditions of the registration test. 

In the following decision, the Registrar’s Delegate tests the application against each of these conditions. The procedural conditions are considered first; then the merit conditions.

A.	Procedural Conditions – Section 190C

Information etc required by s. 61 and s. 62:  s. 190C(2)

Section 190C(2) of the Act requires me to be satisfied that the application contains all details and other information, and is accompanied by any affidavit or other document, required by s. 61 and s. 62. If the application meets all these conditions, then it passes the registration test at s. 190C(2).

Native title claim group:  s. 61(1)
The application is made by a person or persons authorised by all of 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, provided the person or persons are also included in the native title claim group.

Reasons relating to this sub-condition
In Northern Territory of Australia v Doepel [2003] FCA 1384 (‘Doepel’) the court considered s. 61(1) of the Act in light of the s.190C(2) requirement. If it is indicated by the application that not all persons in the native title group were included in the claim group description, or that the group described is in fact a sub-group of a native title group, then the requirements of s. 190C(2) would not be met and the claim could not be accepted for registration.

The consideration of whether all the persons in the native title group are included does not involve me going beyond the application, and in particular does not require merit assessment of the material to determine whether the native title claim group is in reality the correct native title claim group (see Doepel). 

Schedule A of the application contains the following description of the native title claim group:
1.	The native title claim group is comprised by the Wiri People who, according to traditional laws acknowledged, and customs observed:
a.	Are traditionally connected with the area described in Schedule B (“the area claimed”) through:
•	spiritual, religious, and physical associations;
•	biological, classificatory or adoptive descent through the four grandparental lines of father’s father, mother’s father, father’s mother, and mother’s mother; and
•	process of succession.
b.	Have a communal native title in the application area, from which rights and interests derive.
2.	By definition the claimants, in relation to the area claimed, are comprised by all persons descended from the Wiri ancestors identified in paragraph (3).
3.	The Wiri ancestors referred to in paragraph (2) are more particularly identified as follows:
	[Ancestor 1 – name deleted]
	[Ancestor 2 – name deleted]
	[Ancestor 3 – name deleted]
	[Ancestor 4 – name deleted]
[Ancestor 5 – name deleted] & [Ancestor 6 – name deleted], parents of [Descendant 1 – name deleted]
	[Ancestor 7 – name deleted]
	[Ancestor 8 – name deleted]
	[Ancestor 9 – name deleted]
		[Ancestor 10 – name deleted]
		[Ancestor 11 – name deleted]
[Ancestor 12 – name deleted], father of [Descendant 2 – name deleted] & [Descendant 3 – name deleted]
[Ancestor 13] & [Ancestor 14], parents of [Descendant 4 – name deleted] & [Descendant 5 – name deleted]
[Ancestor 15 – name deleted], father of [Descendant 6 – name deleted] & [Descendant 7 – name deleted].
		[Ancestor 16] & [Ancestor 17].

Attachment F1 of the application, being an anthropological report, states (at pages 4 and 8) that the Wiri ancestors are:
[Ancestor 1]
[Ancestor 2]
[Ancestor 3]
[Ancestor 4]
[Ancestor 5] & [Ancestor 6], parents of [Descendant 1]
[Ancestor 7]
[Ancestor 8]
[Ancestor 9]
	[Ancestor 10]
	[Ancestor 11]
	[Ancestor 12], father of [Descendant 2] & [Descendant 3]
	[Ancestor 13] & [Ancestor 14], parents of [Descendant 4] & [Descendant 5]
	[Ancestor 15], father of [Descendant 6] & [Descendant 7]
	[Ancestor 16] & [Ancestor 17]
	[Ancestor 18 – name deleted]
	[Ancestor 19 – name deleted].

The anthropological report therefore includes two ancestors not included in the Schedule A description, namely [Ancestor 18] and [Ancestor 19]. Therefore, the application as filed in the Federal Court indicates that not all persons in the native title group were included in the claim group description at Schedule A. The requirements of s. 190C(2) are not met.

Result:	Requirement not met

Name and address of service for applicants:  s. 61(3)
An application must state the name and address for service of the person who is, or persons who are, the applicant.

Reasons relating to this sub-condition
I note Parts A and B of the application, and am of the view that this procedural requirement is thus met.

Result:	Requirement met

Native title claim group named/described sufficiently clearly:  s. 61(4)
A native title determination application, or a compensation application, that persons in a native title claim group or a compensation claim group authorise the applicant to make must name the persons or otherwise describes the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.

Reasons relating to this sub-condition
Schedule A of the application contains the description of the native title claim group, as being:
1.	The native title claim group is comprised by the Wiri People who, according to traditional laws acknowledged, and customs observed:
a.	Are traditionally connected with the area described in Schedule B (“the area claimed”) through:
•	spiritual, religious, and physical associations;
•	biological, classificatory or adoptive descent through the four grandparental lines of father’s father, mother’s father, father’s mother, and mother’s mother; and
•	process of succession.
b.	Have a communal native title in the application area, from which rights and interests derive.
2.	By definition the claimants, in relation to the area claimed, are comprised by all persons descended from the Wiri ancestors identified in paragraph (3).
3.	The Wiri ancestors referred to in paragraph (2) are more particularly identified as follows:
	[Ancestor 1]
	[Ancestor 2]
	[Ancestor 3]
	[Ancestor 4]
	[Ancestor 5] & [Ancestor 6], parents of [Descendant 1]
	[Ancestor 7]
	[Ancestor 8]
	[Ancestor 9]
		[Ancestor 10]
		[Ancestor 11]
		[Ancestor 12], father of [Descendant 2] & [Descendant 3]
		[Ancestor 13] & [Ancestor 14], parents of [Descendant 4] & [Descendant 5]
		[Ancestor 15], father of [Descendant 6] & [Descendant 7]
		[Ancestor 16] & [Ancestor 17].

In my view the description of the native title group is described sufficiently clearly so as to satisfy the procedural requirement set down in s. 61(4) of the Act.
	
Result:	Requirement met

Application is in prescribed form:  s. 61(5)
An application must be in the prescribed form, be filed in the Federal Court, contain such information in relation to the matters sought to be determined as is prescribed, and be accompanied by any prescribed documents and any prescribed  fee.

Reasons relating to this sub-condition
The application is in the form prescribed by Regulation 5(1)(a) of the Native Title (Federal Court) Regulations 1998. The re-engrossed application I am considering, was filed in the Federal Court on 18 December 2006, as required pursuant to s. 61(5)(b) and contains such information as is required by s. 61(5)(c). Section 61(5)(d) states that the application be accompanied by any prescribed documents, these are set out in s. 62 of the Act (see comments under s. 62 in regard to these documents).

I am not required to consider whether the application has been accompanied by the payment of a prescribed fee to the Federal Court.

I am therefore satisfied that the application is in the prescribed form so as to satisfy s. 61(5) of the Act.

Result:	Requirement met

Application is accompanied by affidavits in prescribed form:  s. 62(1)(a)
An application must be accompanied by an affidavit sworn by the applicant which addresses the matters required by s. 62(1)(a)(i) – s. 62(1)(a)(v). 

Reasons relating to this sub-condition
Section 62(1)(a) of the Act requires an application be accompanied by an affidavit sworn by the applicant addressing certain matters. 

The applicant for the current application is comprised of eleven persons; [Applicant 1], [Applicant 10], [Applicant 5], [Applicant 3], [Applicant 4], [Applicant 8], [Applicant 7], [Applicant 6], [Applicant 11], [Applicant 9] and [Applicant 2].

I have before me affidavits sworn by each of the persons comprising the applicant, all were filed with the current application and all address the matters required. The affidavits as filed in the Federal Court are sufficient to meet this procedural requirement.

Result:	Requirement met

Application contains details set out in s. 61(2):  s. 62(1)(b)
Section 62(1)(b) asks the Registrar to make sure that the application contains the information specified in s. 62(2). Because of this, the decision for this condition is set out under s. 62(2) below.

Details of physical connection:  s. 62(1)(c)
Details of traditional physical connection (information not mandatory) and prevention of access to lands and waters (where appropriate).

Reasons relating to this sub-condition
This section provides that the application may contain details of traditional physical connection and/or any prevention of access.

Schedule M provides:
Members of the Native Title Claim Group currently have a traditional physical connection with the claim area. For example members have used the land and waters covered by the application to reside, to hunt and to enter and travel across.

See Attachment F and in particular the statements of [Applicant 5], [Claimant 6].

This provision of the Act is not mandatory, therefore I must be of the view that the procedural requirement is met by the application, without the need to assess the material provided at Schedule M.

Result:	Provided 

Information about the boundaries of the application area:  s. 62(2)(a)
S. 62(2)(a)(i) - Information, whether by physical description or otherwise that enables the boundaries of the area covered by the application to be identified; 
S. 62(2)(a)(ii) -  Information identifying any areas within those boundaries which are not covered by the application.

Reasons relating to this sub-condition
Schedule B of the application provides:
1.	The area covered by this application (“the application area”) includes all the land and waters inside the external boundary of the application area.

The external boundary of the application area is shown on the map and marked “Attachment C”, and is also identified by reference to the external boundary description set out in “Attachment B”.

Attachment B describes the external boundary of the application area by metes and bounds and references:
-	abutting native title determination applications as at date of registration; 
-	coordinate points; 
-	land parcel  and road reserves; and 
-	topographical features. 

The description provides (at page 15) that:
this application specifically excludes any land and waters claimed in the Wiri #2 application for determination of native title as accepted for registration by the National Native Title Tribunal on 30 October 2000.

The description then provides a non-exhaustive list of lots within the Wiri #2 application which this application excludes, and references a map at Attachment B1 for their general location. Notes relating to the source, currency and datum of information used to prepare the description are also included.

Schedule B, paragraph 2 lists a number of general exclusions.

Schedule C of the application refers to Attachment C which is a monochrome map prepared by the Central Queensland Land Council (CQLC) dated 21 October 2005.

I am of the view that the information provided satisfies this procedural requirement.

Result:	Provided

Map of the application area:  s. 62(2)(b)
The application contains a map showing the external boundaries of the area covered by the application.

Reasons relating to this sub-condition
Attachment C contains a monochrome map which clearly depicts the external boundaries of the application area. I am of the view that the map attached to the application show the external boundaries of the area covered by the application, sufficient to satisfy this requirement. 

Result:	Provided

Details and results of searches:  s. 62(2)(c)
The application contains details and results of all searches carried out to determine the existence of any non-native title rights and interests in relation to the land and waters in the area covered by the application.

Reasons relating to this sub-condition
Schedule D of the application provides that CQLC on behalf of the applicant has not carried out any searches. The condition does not require that searches be carried out.

Result:	Satisfied

Description of native title rights and interests:  s. 62(2)(d)
The application contains a description of native title rights and interests claimed in relation to particular lands and waters (including any activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law.

Reasons relating to this sub-condition
Schedule E of the application contains a description of the claimed native title rights and interests. 

The description does not merely consist of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law. Schedule E, paragraph 1 claims the right to possession, occupation, use and enjoyment of the claim area as against the whole world, with relevant exclusions. At paragraph 2 of Schedule E, 11 individual rights or activities are listed, with respect to all remaining land and waters within the claim area where the rights and interests claimed are not to the exclusion of all others. 

The procedural requirement at s. 62(2)(d) of the Act is thus met by Schedule E. 

Result:	Provided

Description of factual basis:  s. 62(2)(e)
The application contains a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist and in particular that:
(i) 	the native title claim group have, and the predecessors of those persons had, an association with the area; and
(ii) 	there exist traditional laws and customs that give rise to the claimed native title; and
(iii)	the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.

Reasons relating to this sub-condition
The following information is provided at Schedule F:
The claim group asserts that:-
(a)	The native title claim group has, and predecessors of those persons had, an association with the claim area; and
(b)	There exist traditional laws and customs that give rise to native title rights and interests claimed; and
(c)	The native title claim group has continued to hold the native title in accordance with those traditional laws and customs.

The native title rights and interests claimed are those possessed under the traditional laws and customs of the Wiri People which together form part of a body of customary law that is part of a broader system of Aboriginal culture. The broader system is a comprehensive body of law covering cultural values, norms of social behaviour and principles that comprise the land law component of that body of law that govern the landed interests of the claim group. The acquisition of land interests is by descent from ancestors and derived from fundamental rights of possession and ownership of land.

Examples of facts giving rise to the assertion of native title include:-
i.	members of the claim group continue to have a close association, including a spiritual connection with the claim area according to their traditional laws and customs; 
ii.	members of the claim group continue to pass on to their descendants  the body of traditional laws and customs, rights to conduct activities under those traditional laws and customs stories and beliefs concerning their traditional country including the claim area;
iii.	members of the claim group continue to use the claim area for traditional hunting and fishing and for the gathering of traditional bush medicines and other materials;
iv.	members of the claim group continue to care for their traditional country, including the claim area, in accordance with traditional laws and customs passed down to them by their forbears and predecessors;
v.	members of the claim group continue to exercise a body of traditional laws and customs which has been passed down to them from generation to generation by their forebears and predecessors. Such traditions and customs include traditional laws and customs which deal with caring for country, controlling access to country, the holding of ceremonies on traditional country and the use of traditional country.

See Attachments F1 and F2 and in particular the statements of [Claimant 1], [Claimant 2], [Claimant 3], [Claimant 4], [Claimant 5], [Claimant 6] and [Applicant 5] 2005 contained in Appendix 1 of the report of [Anthropologist 1] and [Anthropologist 2].

The information provided at Schedule F is sufficient to satisfy the procedural requirement at s. 62(2)(e). At this stage it is unnecessary for me to assess whether the factual basis provided is sufficient to support the assertion, as that is the requirement under s. 190B(5). 

Result: 	Provided

Activities carried out in application area:  s. 62(2)(f)
If the native title claim group currently carry on any activities in relation to the area claimed, the application contains details of those activities.

Reasons relating to this sub-condition
Schedule G of the application states:
The Native Title Claim Group currently carry out activities consistent with the rights and interests claimed in Schedule E of this application. Some examples of the activities can be found in the material in support of the claim.

The traditional usage of Wiri people includes:
(a)	residing on the land;
(b)	hunting and collecting animals, fish and other food from the lands and waters;
(c)	using waters from the land;
(d)	collecting materials including timber, stones, minerals, ochre, grass and shell from the land and waters;
(e)	travelling across the land and waters;
(f)	camping on the land;
(g)	responsibility for caring for the land and waters including sites of significance;
(h)	teaching children on and about the land and waters; and
(i)	maintaining traditional knowledge of the land and waters, and passing that knowledge on to younger generations.

The details at Schedule G is sufficient for this procedural condition.

Result:	Provided

Details of other applications:  s. 62(2)(g)
The application contains details of any other applications to the High Court, Federal Court or a recognised State/Territory body of which the applicant is aware, that have been made in relation to the whole or part of the area covered by the application and that seek a determination of native title or a determination of compensation in relation to native title.

Reasons relating to this sub-condition
Schedule H of the application provides:
The applicant is not aware of any other applications to the High Court, Federal Court of Australia or a recognised State/Territory body, that seek a determination of native title, or compensation in relation to native title, in respect of the whole or part of the area covered by this application. This application specifically excludes all those tenures claimed in the Wiri #2 application for determination of native title.

I note the result of the overlap analysis undertaken by the Tribunal’s Geospatial Unit (Reference: GeoTrack 2006/2436) which confirms that there are no applications as per the Register of Native Title Claims which fall within the external boundary of this application as at 5 January 2007. 

Section 62(2)(g) requires that the application must contain the details of any other applications of which the applicant is aware when they file the application. Schedule H satisfies this procedural requirement.

Result:	Provided

Details of s. 29 notices:  s. 62(2)(h)
The application contains details of any notices under section 29 (or under a corresponding provision of a law of a State or Territory) of which the applicant is aware, that have been given and that relate to the whole or a part of the area.

Reasons relating to this sub-condition
Schedule I of the application states:
The applicant is not aware of any such notices.

As discussed above, there are s. 29 or equivalent notices that fall within the external boundary of the application. However the Act does not require the applicant to be aware of the relevant notices.

Result:	Requirement met

Common claimants in overlapping claims:  s. 190C(3)

The Registrar must be satisfied that no person included in the native title claim group for the application (the current application) was a member of the native title claim group for any previous application if:
(a)	the previous application covered the whole or part of the area covered by the current application; and
(b)	an entry relating to the claim in the previous application was on the Register of Native Title Claims when the current application was made: and
(c)	the entry was made, or not removed, as a result of consideration of the previous application under section 190A.

Reasons for the Decision
Under section 190C(3) of the Act I must be satisfied that no person included in the native title claim group for the application (the current application) was a member of the native title claim group for any previous application if:
(a)	the previous application covered the whole or part of the area covered by the current application; and
(b)	an entry relating to the claim in the previous application was on the Register of Native Title Claims when the current application was made; and
(c)	the entry was made, or not removed, as a result of consideration of the previous application under section 190A.

It is my understanding that this section is to ensure that there are not two applications registered in respect of the same area by claim groups who have common members. It is noted that the underlying policy is that only a prior registered claim still on the Register will keep the second off the Register where there are common claim group members.

As at the date of my decision there are no claims on the Register which overlap with the application. Therefore I have no need to consider s. 190C(3) further. 

Result:	Requirement met

Application is authorised/certified:  s. 190C(4)

The Registrar must be satisfied that either of the following is the case:
(a)	the application has been certified under paragraph 203BE 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.

Reasons for the Decision
1. The Law
Sections 190C(4) and 190C(5) are concerned with the authorisation of the applicant to make the application and to deal with matters arising in relation to it by the rest of the native title claim group.  

The Federal Court has repeatedly emphasised the importance of proper authorisation for the orderly conduct of native title determination applications - see, for example, the comments by French J in Daniel v State of Western Australia (2003) 194 ALR 278 (‘Daniel’) at [11]:
It is of central importance to the conduct of native title determination applications and the exercise of the rights that flow from their registration, that those who purport to bring such applications and to exercise such rights on behalf of a group of asserted native title holders have the authority of that group to do so.

His Honour also emphasised the importance of maintaining the “ultimate” and “continuing” authority of the native title claim group by ensuring that the applicant is properly authorised (at [16] and [17]). Also in relation to the importance of authorisation O’Loughlin J had this to say in Quall v Risk [2001] FCA 378 at [69]:
The identification of the native title claim group and the authorisation of all members of the group are such vital matters to the success of a native title application that it may become obvious that their absence means that any pursuit of the application would be an exercise in futility.

An applicant may be authorised under s. 190C(4) in one of two ways: see the note to s. 190C(4) which directs the reader to the definition of “authorise” found in s. 251B, which in turn provides:
251B For the purposes of this Act, all the persons in a native title claim group . . . authorise a person or persons to make a native title determination application . . . and to deal with matters arising in relation to it, if:
a.	where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group . . ., must be complied with in relation to authorising things of that kind—the persons in the native title claim group authorise the person or persons . . . in accordance with that process; or
b.	where there is no such process—the persons in the native title claim group . . . authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group . . ., in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.

Section 251B authorisation must be given in one of two ways:
•	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
•	in any other case, by an agreed or adopted process in relation to authorising things of that kind. 

In other words, the second of the two processes under s. 251B may only be employed where there is no traditional process mandated for authorising things of that kind.

Section 190C(4) is concerned to ensure that authorisation has in fact occurred. On the one hand, all the representative bodies in the application area could be responsible for certifying that authorisation has occurred (s. 190C(4)(a)).  Otherwise, if the representative bodies do not certify, the Registrar must be satisfied that authorisation has occurred (s. 190C(4)(b)). I note the comments by Justice Mansfield in Doepel in relation to section 190C(4), (at [78]):
Section 190C(4) indicates clearly the different nature of the conditions imposed upon the Registrar . . . The contrast between the requirements of subs (4)(a) and (4)(b) is dramatic.  In the case of subs (4)(a), the Registrar is to be satisfied about the fact of certification by an appropriate representative body.  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.

His Honour noted further (at [79]) that if s. 190C(4)(a) is satisfied, the Registrar is not required to undertake the task in s. 190C(4)(b).  Further, in relation to the Northern Territory’s contention in that case that the certification could not have provided information sufficient for the Registrar to be satisfied about the applicant’s authorisation, particularly having regard to the description of the native title claim group in the application, his Honour said at [81]:
[this] submission imposes upon the Registrar a function beyond that required by s 190C(4)(a). Section 203BE(4) requires the certification to include a statement to the effect that the representative body is of the opinion that the requirements of subs (2)(a) and (b) are met and to briefly set out the reasons for the representative body holding that opinion. The NLC certification meets those requirements. The alternative provided for in s 190C(4)(b), and the nature of the obligations of the representative body under s 203BE, indicate in my view that in the one case the responsibility for addressing the requirements of s 251B (to the extent they must be addressed when considering whether to accept an application for registration) rests in substance with the representative body, and in the other case with the Registrar. Section 203BE(2) provides emphatically that the representative body ‘must not’ provide its certificate unless it is of the opinion that all the persons in the native title claim group have authorised the applicant to make the application and to deal with matters arising in relation to it. In my judgment, section 190C(4)(a) does not leave some residual obligation upon the Registrar, once satisfied of the matters to which s 190C(4)(a) expressly refers, to revisit the certification of the representative body.

2. Information before me
2.1	Information in the application
I have before me, provided at Attachment R to the application, a certification by CQLC dated 28 September 2006. The certificate provides:
1.	CQLC is of the opinion that:
(i)	the Applicant has the authority to make the application and to deal with matters in relation to it, on behalf of all other persons in the native title claim group; 
(ii)	all reasonable efforts have been made to ensure that the application describes or otherwise identifies all the other persons in the native title claim group; and
(iii)	the requirements of section 203BE(2)(a) and (b) of the NTA have been satisfied.

CQLC also provides brief reasons for it being of the opinion that s. 203BE(2)(a) and (b) of the NTA have been satisfied, including:
-	The CQLC through its staff and contracted consultants has undertaken extensive research and community consultation in the preparation of the present application for a determination of native title, with a view to ensuring that the application describes or otherwise identifies all other persons in the native title claim group.
-	The CQLC through its staff and contracted consultants has undertaken extensive research and community consultation to be reasonably satisfied that the area referred to in this application is not overlapped by any other native title application.
-	The CQLC through its staff and contracted consultants has attended meetings with claimants across the claim area the subject of the present application and has observed that the Applicant is authorised by the claim group to make this application.
-	The native title claim group is made up of the descendants of the apical ancestors. They have agreed to and adopted a decision making process which requires that the authorisation of the Applicant to make this application and to deal with any matters in relation to it must first be approved by the native title claim group at a community meeting, at which the native title group are consulted.
-	On the 20 and 21 of May 2005 a meeting of the claimants and the CQLC was held at the Showgrounds at Mackay. This meeting authorised the named applicants to make the application.
-	The meeting was representative of the members of the claimant group.

2.2	Other Information
The delegate is aware that the certification of the application is the subject of a challenge by certain persons who comprise the applicant, namely [Applicant 3], [Applicant 8], [Applicant 7] and [Applicant 2] (see letters from D&G Lawyers).
 
The delegate also has before her material identified from Tribunal files relating to previous Wiri applications (QG6242/1998, QG6251/1998, Q6033/1999, Q6009/2001). These files include affidavits sworn by persons who now comprise the applicant of the current application. From these affidavits I have extracted relevant information regarding the authorisation process of the Wiri People:
•	Affidavit of [Applicant 3], sworn 15 February 2001 (on file QG6242/1998);
-	At [4]; ‘I am aware that the WIRI People have a traditional decision making process that must be complied with when land issues are involved. The Elders and heads of families discuss the issue amongst themselves and their relatives and then the Elders and heads of families reach a consensus among themselves after considering the views of others.’
-	At [5]; ‘I am aware that under WIRI customary law and tradition the Elders decide land business for all WIRI People. A decision of the Elders and heads of families is final and WIRI People who are not Elders and heads of families cannot disagree publically (sic) with the Elders about such a decision.’
•	Affidavit of [Applicant 8], sworn 17 February 2001 (on file QG6242/1998);
-	At [4]; ‘I am aware that the WIRI People have a traditional decision making process that must be complied with when land issues are involved. The Elders and heads of families discuss the issue amongst themselves and their relatives and then the Elders and heads of families reach a consensus among themselves after considering the views of others.’
-	At [5]; ‘I am aware that under WIRI customary law and tradition the Elders decide land business for all WIRI People. A decision of the Elders and heads of families is final and WIRI People who are not Elders and heads of families cannot disagree publically (sic) with the Elders about such a decision.’
•	Affidavit of [Applicant 7], affirmed 6 October 1999 (on file QG6251/1998);
-	At [e]; ‘…Through this process, the claimant group were selected, firstly by their respective families, through a Traditional law and custom process…’
•	Affidavit of [Applicant 8], sworn 26 October 1999 (on file QG6251/1998);
-	At [e]; ‘…Through this process, the claimant group were selected, firstly by their respective families, through a Traditional law and custom process…’
•	Affidavit of [Applicant 6], sworn 17 November 1999 (on file Q6033/1999);
-	At [4]; ‘The WIRI People have a traditional decision-making process that must be complied with when land issues are involved. The Elders and heads of families discuss the issue amongst themselves and their relatives and then the Elders and heads of families reach a consensus among themselves after considering the views of others.’
-	At [5]; ‘Under WIRI customary law and tradition the Elders decide land business for all WIRI People. A decision of the Elders and heads of families is final and WIRI People who are not Elders and heads of families cannot disagree publically (sic) with the Elders about such a decision.’
-	At [8]; ‘The WIRI People have complied with our own customary and traditional decision-making process that must be complied with and have authorised this application.’
•	Affidavit of [Applicant 5], sworn 15 March 2001 (on file Q6009/2001);
-	At [5]; ‘At a meeting of traditional owners…I was nominated by the meeting to be an Applicant to the Application and was authorised…This was the result of a decision made by the traditional owners who attended the authorisation meeting, in a manner consistent with traditional law and custom.’
•	Affidavit of [Applicant 8], sworn 15 March 2001 (on file Q6009/2001);
-	At [5]; ‘At a meeting of traditional owners…I was nominated by the meeting to be an Applicant to the Application and was authorised…This was the result of a decision made by the traditional owners who attended the authorisation meeting, in a manner consistent with traditional law and custom.’
•	Affidavit of [Applicant 6], sworn 16 March 2001 (on file Q6009/2001);
-	At [5]; ‘At a meeting of traditional owners…I was nominated by the meeting to be an Applicant to the Application and was authorised…This was the result of a decision made by the traditional owners who attended the authorisation meeting, in a manner consistent with traditional law and custom.’

3. Delegate’s Consideration
As stated above, authorisation must be by one of the two methods set out in s.251B of the Act, namely where there is a traditional decision making process that must be used, otherwise an agreed and adopted process can be used. The certification provided by CQLC states:
The native title claim group…have agreed to and adopted a decision making process which requires that the authorisation of the Applicant to make this application and to deal with any matters in relation to it must first be approved by the native title claim group at a community meeting, at which the native title group are consulted.

Seemingly contradictory are the previously filed affidavits of persons comprising the applicant to the current application, which state that the Wiri People have a traditional decision making process that must be followed.

However as stated in Wakaman People #2 v Native Title Registrar and Authorised Delegate [2006] FCA 1198 at [34]:
a consideration of aspects of the authorisation process is not to be undertaken by a Registrar where the application in question has been certified in accordance with s. 203BE.

It is not my role as Registrar’s delegate to be satisfied about the correctness of the certification; I merely need to be satisfied the certification was made by the appropriate representative bodies for the area and that it contains the statements required by s. 203BE(4).

The analysis provided by the Tribunal’s Geospatial Unit on 5 January 2007 (Reference: GeoTrack 2006/2436) confirms that CQLC is the only representative body for the area.

The certification in Schedule R contains the statements and information required by s. 203BE(4). For these reasons I am satisfied that the application has been certified by the relevant representative body for the area of this application - the certification is that found in Schedule R of the application and is a statement by CQLC dated 28 September 2006, signed by a Director to whom authority has been delegated under a resolution by the CQLC.  This certification complies with the requirements for a valid certification under s. 203BE(4) of the NTA.

Result:         	Requirement met
B.	Merit Conditions – Section 190B

Identification of area subject to native title:  s. 190B(2)

The Registrar must be satisfied that the information and map contained in the application as required by paragraphs 62(2)(a) and (b) are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters.

Reasons for the Decision
Schedule B of the application provides:
1.	The area covered by this application (“the application area”) includes all the land and waters inside the external boundary of the application area.

The external boundary of the application area is shown on the map and marked “Attachment C”, and is also identified by reference to the external boundary description set out in “Attachment B”.

Attachment B describes the external boundary of the application area by metes and bounds and references:
-	abutting native title determination applications as at date of registration; 
-	coordinate points; 
-	land parcel  and road reserves; and 
-	topographical features. 

The description provides (at page 15) that:
this application specifically excludes any land and waters claimed in the Wiri #2 application for determination of native title as accepted for registration by the National Native Title Tribunal on 30 October 2000.

The description then provides a non-exhaustive list of lots within the Wiri #2 application which this application excludes, and references a map at Attachment B1 for their general location. Notes relating to the source, currency and datum of information used to prepare the description are also included.

Schedule B, paragraph 2 lists a number of general exclusions.

Schedule C of the application refers to Attachment C which is a monochrome map prepared by the Central Queensland Land Council (CQLC) dated 21 October 2005.

An assessment of the description and map provided by the Tribunal’s Geospatial Unit on 5 January 2007 (Reference: Geotrack 2006/2436) concluded that the description and the map were consistent and identify the application area with reasonable certainty. However it did note a number of typographical errors:
•	Attachment B, page 1, paragraph 5, line 1 – “then in generally easterly direction…” should read “then in a generally westerly direction…”
•	Attachment B, page 15 (list of excluded lots) 
- 3 Nebo Creek, Lot on plan 120N101 should read “…plan 120N1101”.
- 5 Funnell Creek Locality of Carmila, Lot on plan 43WH5154 should read “…plan 43WHS154”.
- 6 East Funnell Creek Road Locality of Koumala, Lot on plan 45WH5109 should read “…plan 45WHS109”.

Having regard to the information contained in the application, I am satisfied that the information provided enables the boundaries of the application area to be identified with reasonable certainty. For the reasons above, I am satisfied that the requirement at s. 190B(2) is met.

Result:	Requirement met

Identification of the native title claim group:  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.

Reasons for the Decision
Under this section, I am only required to be satisfied that one of the requirements in s. 190B(3) is met. That is, either the persons in the native title claim group must be named in the application (s. 190B(3)(a)) or the persons in that group must be described sufficiently clearly so that it can be ascertained whether any particular person is in that group (s. 190B(3)(b)).

The description at Schedule A of the application is not a complete list of names of the claim group members which means that it does not satisfy s. 190B(3)(a). The claim group description must therefore satisfy s. 190B(3)(b). 

Schedule A of the application contains the description of the native title claim group, as being:
1.	The native title claim group is comprised by the Wiri People who, according to traditional laws acknowledged, and customs observed:
a.	Are traditionally connected with the area described in Schedule B (“the area claimed”) through:
•	spiritual, religious, and physical associations;
•	biological, classificatory or adoptive descent through the four grandparental lines of father’s father, mother’s father, father’s mother, and mother’s mother; and
•	process of succession.
b.	Have a communal native title in the application area, from which rights and interests derive.
2.	By definition the claimants, in relation to the area claimed, are comprised by all persons descended from the Wiri ancestors identified in paragraph (3).
3.	The Wiri ancestors referred to in paragraph (2) are more particularly identified as follows:
	[Ancestor 1]
	[Ancestor 2]
	[Ancestor 3]
	[Ancestor 4]
	[Ancestor 5] & [Ancestor 6], parents of [Descendant 1]
	[Ancestor 7]
	[Ancestor 8]
	[Ancestor 9]
		[Ancestor 10]
		[Ancestor 11]
		[Ancestor 12], father of [Descendant 2] & [Descendant 3]
		[Ancestor 13] & [Ancestor 14], parents of [Descendant 4] & [Descendant 5]
		[Ancestor 15], father of [Descendant 6] & [Descendant 7]
		[Ancestor 16] & [Ancestor 17].

In State of Western Australia v Native Title Registrar [1999] FCA 1591 (16 November 1999) Carr J said at [67]: 
It may be necessary, on occasions, to engage in some factual inquiry when ascertaining whether any particular person is in the group as described. But that does not mean that the group has not been described sufficiently.

I am of the opinion that some factual inquiry may be required to identify members of the native title claim group in this matter, that is, to identify who are the descendants of the named ancestors. However, I am of the view that this identification by reference to descendants of apical ancestors is capable of satisfying the requirements of s. 190B(3) in this instance.  

I am satisfied that the description as provided at Schedule A of the application is sufficiently clear to satisfy the requirement of s. 190B(3)(b).

Result:	Requirement met

Native title rights and interests are readily identifiable:  s. 190B(4)

The Registrar must be satisfied that the description contained in the application as required by paragraph 62(2)(d) is sufficient to allow the native title rights and interests claimed to the readily identified.

Reasons for the Decision
Section 190B(4) requires me to be satisfied that the description of the native title rights and interests contained in the application is sufficient to allow the rights and interests to be readily identified. 
  
I am of the view that for a description to be sufficient to allow the claimed native title rights and interests to be readily identified it must describe what is claimed in a clear and easily understood manner.  Any assessment of whether the rights can be prima facie established as native title rights and interests will be discussed in relation to the requirement under s. 190B(6) of the Act. At this stage the delegate is focussing only on whether the rights and interests as claimed are identifiable.

Schedule E of the application contains a description of the claimed native title rights and interests.  The claimed rights and interests are subject to a number of qualifications also set out in Schedule E.  In summary, exclusive possession is claimed where it can be recognised (paragraph 1 of Schedule E) and over areas where exclusive possession cannot be recognised 11 individual rights are claimed (paragraph 2 of Schedule E). 

The applicant has listed the claimed rights and interests as activities which, in my view are sufficiently clear to be understood. Possession, occupation use and enjoyment can be clearly and easily understood, as can the 11 listed rights, which are not claimed to the exclusion of all others. I am satisfied that the requirement of this section is met.

Result:	Requirement met

Factual basis for claimed native title:  s. 190B(5)

The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions:
(a)	that the native title claim group have, and the predecessors of those persons had, an association with the area;
(b)	that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests;
(c)	that the native title claim group has continued to hold the native title in accordance with those traditional laws and customs

Reasons for the Decision
1.	The Law
Under s. 190B(5) of the Act I must be satisfied that the factual basis on which it is asserted that the claimed native title rights and interests exist, is sufficient to support that assertion. The factual basis provided must support the particular assertions set out in paras (a), (b) and (c) of s. 190B(5). These paragraphs express the important aspects of this requirement for a sufficient factual basis under the section, namely an association with the area, the existence of ‘traditional’ laws and customs acknowledged by the native title claim group, and that the group have continued to hold the native title in accordance with those traditional laws and customs. 

I am not limited to consideration of information contained in the application but may refer to additional material supplied by the applicant (Western Australia v Strickland (2000) 99 FCR 33 at [88]- [89]).  I may also have regard to information from other sources relevant to my consideration, subject to providing procedural fairness to the applicant and other parties required by law, for instance where it is potentially adverse and the applicant has not seen that material (refer to the concluding words of s. 190A(3) that the Registrar ‘may have regard to such other information as he or she considers appropriate’).

The provision of material demonstrating a sufficient factual basis for the assertion that the claimed rights and interests exist is ultimately the responsibility of the applicant. There is no requirement that I undertake a search for this material (see French J in Martin v Native Title Registrar [2001] FCA 16). 

In Martin v Native Title Registrar [2001] FCA 16 at [28], French J had this to say about the requirements of the section:
The critical finding of the delegate was that there was little information about the relationship of the claim group and its predecessors to the Widi people. This consideration was involved in his analysis of whether he could be satisfied that there was a factual basis supporting the primary assertion referred to in s 190B(5)(b). He was entitled to take the view that he did that the factual basis laid out did not support the conclusion that was necessary. He was not obliged to accept the very general assertion in Schedule F as disclosing a factual basis for the matters of which he had to be satisfied. In my opinion the delegate did not err in coming to the conclusion that he did in relation to this condition.

Further, my role is not to test the asserted facts which will or may be proved at hearing or to assess the strength of the evidence which may ultimately be adduced to establish facts. The Act requires me to address the quality of the asserted factual basis for those claimed rights and interests; but only in the sense of ensuring that, if they are true, they can support the existence of those claimed rights and interests. In other words, the Registrar is required to determine whether the asserted facts can support the claimed conclusions. Such has been stated to be the Registrar’s task under this section, as described in Doepel at [17].

2.	Information before me
2.1	Information in the application
2.1.1 Schedule F of the application
The application provides a description of the factual basis at Schedule F.  This information is brief, generic and formulaic.  The generic statements provided contain little specificity to the Wiri people, their particular traditional laws and customs, or the continuity of those laws and customs from the society or group at sovereignty. 

2.1.2 Attachment F1 of the application
Attachment F1 is a report on anthropological fieldwork undertaken by [Anthropologist 1] and [Anthropologist 2] in relation to the Wiri Core Country Claim, dated September 2006. I have extracted below particularly relevant statements of the report:
•	“…those Wiri Core Country claimants who have been interviewed at their homes specifically for this research by either [Anthropologist 2] or [[Anthropologist 1]] include:
o	[Claimant 6] (now deceased, formerly of Mackay), interviewed by [Anthropologist 2] and [Anthropologist 1] on 2/8/2005
o	[Claimant 3] (of Cherbourg), interviewed by [Anthropologist 1] on 26/10/05
o	[Claimant 1] (of Mackay), interviewed by [Anthropologist 2] on 26/10/05
o	[Claimant 4] (of Cherbourg), interviewed by [Anthropologist 1] on 27/10/2005
o	[Applicant 1] (of Sarina), interviewed by [Anthropologist 2] on 28/10/2005
o	[Claimant 5] (of Woorabinda), interviewed by [Anthropologist 1] on 2/11/2005
o	[Claimant 2] (of Palm Island), interviewed by [Anthropologist 2] on 3/11/2000
o	[Claimant 7 – name deleted] (of Cherbourg), interviewed by [Anthropologist 1] on 3/12/05”

•	“The following ancestors have been identified in ethno-historical research, principally from Tindale and Birdsell in the 1930s, as having an association with the area and as being of the ‘Wiri tribe’: 
	[Ancestor 1]
	[Ancestor 2]
	[Ancestor 3]
	[Ancestor 4]
	[Ancestor 5] & [Ancestor 6], parents of [Descendant 1]
	[Ancestor 7]
	[Ancestor 8]
	[Ancestor 9]
		[Ancestor 10]
		[Ancestor 11]
		[Ancestor 12], father of [Descendant 2] & [Descendant 3]
		[Ancestor 13] & [Ancestor 14], parents of [Descendant 4] & [Descendant 5]
		[Ancestor 15], father of [Descendant 6] & [Descendant 7]
		[Ancestor 16] & [Ancestor 17]
		[Ancestor 18]
		[Ancestor 19]”

•	“In my opinion, the native title claim group has an association with the claim area. This relationship is both physical and spiritual. The claim group is consanguineally descended under a cognatic system from ancestors identified by Tindale in the 1930s as Wiri. Furthermore, this relationship is mediated and informed by traditional laws and customs that continue to be acknowledged and observed by the contemporary group.”

Annexure 1 to Attachment F1 contains ‘Key Statements from Wiri Interviews’;
•	“My name is [Claimant 1]…My mother’s mother ([Ancestor 19]) taught me…I am a traditional Owner of Wiri country…The Wiri people include the [Family 1 – name deleted], [Family 2 – name deleted] and [Family 3 – name deleted] families…I get my country through my mother and mother’s mother…Wiri country includes Nebo and surrounds. I was told this by my brother [Claimant 6] (dec).”
•	“My full name is [Applicant 1]…I am a Traditional Owner of Wiri country…The Wiri people include the [Family 4 – name deleted] (who say they’re Wiri, but I don’t know), the [Family 3] and [Family 5 – name deleted] families.”
•	“My full name is [Claimant 2]…I was born in Nebo and I am 98 years old…My father was [Claimant 9 – name deleted]…My mother was [Claimant 10 - name deleted]…My FF was [Claimant 11 – name deleted]…Both my father and mother were Wiri people. My FF was a Wiri man too. I take my Wiri traditional country from my father.”
•	“My name is [Claimant 3]…My father was [Claimant 12 – name deleted], and my mother is [Claimant 13 – name deleted]…I identify as a Wiri man…My grandmother (FM) was [Claimant 14 – name deleted] of Nebo. Her parents, my great grandparents, were [Claimant 15 – name deleted] from around Lake Elphinstone near Nebo, and [Claimant 16 – name deleted] also of the Nebo area…my uncle [Claimant 6]…”
•	“My name is [Claimant 4]. I was [Claimant 4] when I was born…[Surname of claimant 4] is my mother’s maiden name…My father was [Claimant 17 – name deleted]…My mother was [Claimant 18 – name deleted]…My Wiri identity comes from my father…My grandparents, [Claimant 19 – name deleted] and [Claimant 20 – name deleted], are buried here…”
•	“My name is [Claimant 5]…I identify as both a Wiri man and a Jangga man…My mother was [Claimant 21 – name deleted]…My father is [Claimant 22 – name deleted]…My Wiri identity is from my mother’s side…”
•	“My full name is [Claimant 6]…I am a Traditional Owner of Wiri country…My mother’s mother, [Ancestor 19]…My grandmother told us about our country…”
•	“My full name is [Applicant 5], I am a Wiri man…I am a Wiri traditional owner…I get my Wiri identity from my mother, [Claimant 23 – name deleted], and her father [Claimant 24 – name deleted]. My great, great grandfather was [Ancestor 8], a full blood Wiri…”

2.1.3 Attachment F2 of the application
Attachment F2 is a Supplementary Report by [Anthropologist 2] dated September 2006 entitled ‘Associations: the archaeological and historical evidence’. 

2.2	Information from those who oppose the application
This adverse information comes from those who are part of the native title claim group for the application, including persons who comprise the applicant for the current application. These persons are represented by D&G Lawyers. I have extracted below relevant material from the correspondence received.

Letter from D&G Lawyers, dated 2 November 2006
•	“Each of [Applicant 3], [Applicant 8], [Applicant 2], [Person 1 represented by D&G Lawyers], [Person 2 represented by D&G Lawyers], [Person 3 represented by D&G Lawyers], [Person 4 represented by D&G Lawyers] and [Person 5 represented by D&G Lawyers] are Wiri people and oppose the Registrar dealing with QUD 372 of 2006 which has been filed over Wiri country.”
•	“It appears that [Applicant 3], [Applicant 8], [Applicant 2], [Person 1 represented by D&G Lawyers], [Person 2 represented by D&G Lawyers], [Person 4 represented by D&G Lawyers] and [Person 5 represented by D&G Lawyers] are members of the claim group as described in the new application. It is not certain that [Person 3 represented by D&G Lawyers]will have any rights under the new application. The position of each of them is that the claim group described in the application incorrectly includes Barada people and other people who are not properly Wiri.”

Letter from D&G Lawyers, dated 10 November 2006
•	“This application includes a description of the native title claim group by reference to named ancestors. Included in the list of named ancestors is [Ancestor 1A – name deleted]. Our instructions, which include instructions from persons who are named as applicants in this application, are that [Ancestor 1A] is not known to be a Wiri person.”
•	“Included in the list of named ancestors is [Ancestor 11]. Our instructions, which include instructions from persons who are named as applicants in this application, are that [Ancestor 11] is not known to be a Wiri person. We note that [Person 1 – name deleted] and his children including [Ancestor 11] are included in the description of the native title claim group on QUD6230 of 1998 Jangga People. Therefore, even if [Ancestor 11] can be described as a Wiri person, it is apparent that the descendants of the other siblings being [Person 2 – name deleted], [Person 3 – name deleted], [Person 4 – name deleted] and [Person 5 – name deleted] have been excluded and that this is a description of part only of a native title claim group.”
•	“Included in the list of named ancestors is [Ancestor 12], father of [Descendant 2] and [Descendant 3]. Our instructions, which include instructions from persons who are named as applicants in this application, are that [Ancestor 12], father of [Descendant 2] and [Descendant 3] is not known to be a Wiri person.”
•	“Included in the list of named ancestors is [Ancestor 13] and [Ancestor 14], parents of [Descendant 4] and [Descendant 5]. Our instructions, which include instructions from persons who are named as applicants in this application, are that [Ancestor 13] and [Ancestor 14], parents of [Descendant 4] and [Descendant 5] are not known to be Wiri people.”
•	“Included in the list of named ancestors is [Ancestor 16] and [Ancestor 17]. Our instructions, which include instructions from persons who are named as applicants in this application, are that [Ancestor 16] and [Ancestor 17] are not known to be Wiri people.”
•	“…it is difficult for the Registrar to be satisfied that the ancestors listed formed a traditional society under whose common laws and customs the native title rights and interests are derived in circumstances where members of the purported claim group have no knowledge of some of those ancestors.

3. 	Delegate’s Consideration
The factual basis provided
The applicant provided information at Schedule F as well as anthropological reports at Attachment F1 and Attachment F2 of the application for the purposes of satisfying s. 190B(5) of the Act. As noted above, the information at Schedule F was generic and formulaic, and as stated in Martin, I am not obliged to accept very general assertions at Schedule F as disclosing a factual basis for the matters of which I must be satisfied. In my view the information at Schedule F alone is insufficient factual basis to support the assertions at s. 190B(5). 

The anthropological report at Attachment F1 relies on interviews conducted with members of the native title group (as described in the report). Appendix 1 to the report provides statements from interviewees; [Claimant 6], [Claimant 3], [Claimant 1], [Claimant 4], [Applicant 1], [Claimant 5], [Applicant 5] and [Claimant 2]. The statements make it clear that a number of the interviewees are not part of the native title claim group as described in Schedule A, namely:
o	[Claimant 6] is a descendant of [Ancestor 19].
o	[Claimant 1] is a descendant of [Ancestor 19]. 
o	[Claimant 3] is a descendant of [Ancestor 20 – name deleted].

[Ancestor 19] and [Ancestor 20] are not Wiri ancestors named in Schedule A of the application. In addition, of the ancestors listed in Schedule A, it is unclear who [Claimant 2] is descended from. In the statement attributed to him he states that his father was [Claimant 9], his mother [Claimant 10] and his grandfather was [Claimant 25], yet none of these are ancestors listed in Schedule A.

Throughout both anthropological reports, statements by [Claimant 6] and [Claimant 1] are heavily referenced to support the assertions that the group has an affiliation with the area, the group has traditional laws and customs, and that the group has continued to hold the native title in accordance with those traditional laws and customs. However as these persons are not members of the native title claim group, as defined in Schedule A, it is difficult to see how I can rely on information provided by these persons to support a sufficient factual basis for the assertions at s. 190B(5).  Additionally, if these persons are in fact Wiri, but have been excluded from the native title claim group, as that term is defined in s. 61(1), then this in my view undermines the overall factual basis provided in this application.

That being the case, the only statements remaining for consideration under s.190B(5) are those of [Applicant 1], [Claimant 4], [Claimant 5], and [Applicant 5]. The statements are largely biographical and contain limited information detailing Wiri traditional laws and customs. The word ‘traditional’, as I use here, must be understood in light of the High Court’s reasoning in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 (“Yorta Yorta”). The Court held that only laws and customs that have their origins before the assertion of British sovereignty are capable of being considered ‘traditional’ and that those laws and customs must remain ‘substantially unchanged’ since that time. The recent Federal Court decision in Risk v Northern Territory [2006] FCA 404 supported the Yorta Yorta view. These statements from persons that can be identified as members of the group described in Schedule A, contain insufficient factual basis to support the requisite assertions. For example, they do not show how it is asserted that:
•	the claim group members have been taught traditional laws and customs by those, who under those laws and customs, were responsible for imparting that knowledge (elders for example).
•	the group has continued to acknowledge and observed the importance of teaching traditional laws and customs to less senior people who, under those laws and customs are entitled to receive the information. 
•	the claim group has demonstrated knowledge of particular sites and of the activities in which they have engaged in at those sites.

I am therefore of the view that the factual basis provided is insufficient to support the assertions at s. 190B(5). In any event I note that problems at s. 61(1), as discussed below preclude me from being satisfied under s. 190B(5).

In my reasons under s. 61(1) I examined discrepancies in the application which indicated that the native title claim group description at Schedule A excluded persons from the native title claim group (noting the list of ancestors contained in the application at Attachment F1).  In the anthropological reports, the anthropologists comes to the view that the Wiri native title group (as described in the report) are the native title group for the claim area, have associations with the area, acknowledge traditional laws and customs and have continued to hold native title in accordance with those laws and customs.

The exclusion of persons who appear to belong to the Wiri native title claim group is fatal to my being satisfied that the factual basis provided is sufficient to support the assertion that the claimed native title rights and interests exist. I refer to my examination of the application that led to my findings as to this in my reasons under s. 61(1).

On this point, I also have before me objections to this application from persons claiming to be native title holders in the application area.  The objectors include persons who comprise the applicant on the claim; [Applicant 8], [Applicant 7], [Applicant 3] and [Applicant 2]. Information supplied by D&G Lawyers (representing these persons and other Wiri persons) provides further information indicating that the native title claim group as described in Schedule A is not the entirety of the group as defined in s. 61(1). In particular it is asserted that [Person 3 represented by D&G Lawyers], although being a Wiri person does not appear to be included in the claim group description provided at Schedule A.

Traditional laws and customs of a society
The Court in Northern Territory v Alyawarr [2005] FCAFC 135 referred to Yorta Yorta and said:
The laws and customs, from which the native title rights and interests derive their existence, must necessarily be those of a society or group… laws and customs and the society which acknowledges and observes them are inextricably interlinked.

Therefore the factual material should indicate that the laws and customs are ‘traditional’ and that they were possessed by the normative society. It is the Applicant’s responsibility under s. 190B(5) to provide sufficient factual basis to 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. As stated above in Alyawarr those laws and customs must be those of a society. 

I have before me information submitted by D&G Lawyers who represent a number of Wiri persons, which raises questions in my mind as to whether some of the claimed ancestors identified in Schedule A are in fact Wiri, namely:
o	[Ancestor 1A]
o	[Ancestor 11]
o	[Ancestor 12], father of [Descendant 2] and [Descendant 3], Applicant 13] and [Applicant 14], parents of [Descendant 4] and [Descendant 5]
o	[Applicant 16] and [Applicant 17].
 
The relevance of this information is that it undermines the limited factual basis before me (as I have noted above) for the assertion that the native title claim group is in fact a normative society which holds common laws and customs from which the native title rights and interests derive their existence. It is difficult for me to be satisfied that the native title claim group in this application acknowledge the traditional laws and observe traditional customs of a traditional society where members of that claim group have no knowledge of claimed ancestors being part of the society.

4. Conclusion
The test in section 190A involves an administrative decision – it is not a trial or hearing of a determination of native title pursuant to s. 225, and therefore it is not appropriate to apply the standards of proof that would be required at such a trial or hearing.  It is not the task of the delegate to make findings about whether or not the claimed native title rights and interests exist.  It is not the role of the delegate to reach definitive conclusions about complex anthropological issues pertaining to applicant’s relationship with their country as that is a judicial enquiry.

What I must do is consider whether the factual basis provided by the applicant is sufficient to support the assertion that the claimed native title rights and interests exist.  In particular this material must support the assertions described in s. 190B(5)(a), (b) and (c).  Having reviewed the material identified above, I am not satisfied that a sufficient factual basis is provided. In summary, the following factors, collectively, weigh heavily:
o	The paucity of the material provided.
o	The exclusion of persons from the native title claim group whose statements are relied on heavily to support a factual basis, with no reasonable explanation for that exclusion.
o	The provision of adverse material from lawyers acting for Wiri persons, including a number of persons who are part of the applicant, which asserted among other things that some of the ancestors listed in the claim group description are not known to be Wiri.

Therefore I am not satisfied that sufficient factual basis has been provided to support the assertions at s. 190B(5).

Result:	Requirement not met

Native title rights and interests claimed established prima facie:  s. 190B(6)

The Registrar or his delegate must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established.

Reasons for the Decision
As I have found that there is not a sufficient factual basis provided to support the assertion that the claimed native title rights and interests exist, it must follow that I do not consider, for the reasons outlined above under s. 190B(5), that at least some of the native title rights and interests can prima facie be established.

Result: 	Requirement not met

Traditional physical connection:  s. 190B(7)

The Registrar must be satisfied that at least one member of the native title claim group:
(a)	currently has or previously had a traditional physical connection with any part of the land or waters covered by the application; or
(b)	previously had and would reasonably have been expected currently to have a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to the land or waters) by:
(i)	the Crown in any capacity; or
(ii)	a statutory authority of the Crown in any capacity; or
(iii)	any holder of a lease over any of the land or waters, or any person acting on behalf of such a holder of a lease.

Reasons for the Decision
Under s. 190B(7)(a), I must be satisfied that at least one member of the native title claim group currently has or previously had a traditional physical connection with any part of the land or waters covered by the application.

‘Connection’ with the land, as it is used in the definition of native title at s. 223, is a fundamental concept and this information is taken into account at s. 190B(5). It is also relevant at s. 62(c)(i) and (ii). I am of the view that ‘traditional’ as it is used here must be understood as it was defined in Yorta Yorta. That is, it is necessary to show that the connection is in accordance with the laws and customs of the group that have their origins in pre-contact society.

As stated above, based on the information before me, I am not satisfied that there is a sufficient factual basis to support the assertion that there exist traditional laws and customs of the native title claim group. In turn, I cannot be satisfied that at least one member of the native title claim group currently has or previously has a traditional connection with any part of the land covered by the application in accordance with those laws and customs.

Result: 	Requirement not met

No failure to comply with s. 61A:  s. 190B(8)

The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that because of s. 61A (which forbids the making of applications where there have been previous native title determinations or exclusive or non-exclusive possession acts), the application should not have been made.

Section 61A contains four conditions. Because s. 190B(8) asks the Registrar to test the application against s. 61A, the decision below considers the application against each of these four conditions.

Reasons for the Decision
Native Title Determination – s. 61A(1)
The Geospatial Unit of the Tribunal has conducted an overlap analysis of the claim area. The analysis, dated 5 January 2007 (Reference: GeoTrack 2006/2437) confirmed that no applications per the Register of Native Title Claims fall within the external boundary of the amended application as at 5 January 2007.

Previous Exclusive Possession Acts – s. 61A(2)
Schedule B excludes from the application any area covered by a previous exclusive possession act.

Previous Non-Exclusive Possession Acts – s 61A(3)
Schedule E excludes from the application any area covered by a previous non-exclusive possession act as defined in s. 23F of the Act.

ss. 47, 47A, 47B Areas – s. 61A(4)
Schedule B provides that areas covered by ss. 47, 47A and 47 B of the Act are not excluded from the application.

Result:	Requirement met 

No claim to ownership of Crown minerals, gas or petroleum:  s. 190B(9)(a) 
The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that:
(a)	to the extent that the native title rights and interests claimed consist or include ownership of minerals, petroleum or gas – the Crown in the right of the Commonwealth, a State or Territory wholly owns the minerals, petroleum or gas;

Reasons for the Decision
Schedule Q of the application states that the applicant does not make any claim to the ownership of minerals, petroleum or gas wholly owned by the Crown.

Result:	Requirement met

No exclusive claim to offshore places:  s. 190B(9)(b)
The application and accompanying documents must not disclose, and the Registrar must not be otherwise aware, that:
(b)	to the extent that the native title rights and interests claimed relate to waters in an offshore place – those rights and interests purport to exclude all other rights and interests in relation to the whole or part of the offshore place;

Reasons for the Decision
Schedule P of the application states that the applicant does not claim exclusive possession of all or part of any offshore place. 

Result:	Requirement met 

Native title not otherwise extinguished:  s. 190B(9)(c)
The application and accompanying documents must not disclose, and the Registrar must not be otherwise aware, that:
(c)	in any case – the native title rights and interests claimed have otherwise been extinguished (except to the extent that the extinguishment is required to be disregarded under subsection 47(2), 47A(2) or 47B(2)).

Reasons for the Decision
The application and accompanying documents do not disclose, and it is not readily apparent, that the native title rights and interests claimed have otherwise been extinguished. 

In addition, Schedule B to the application excludes from the application area rights and interests that have otherwise been extinguished.

I am satisfied that the application meets this condition.

Result:	Requirement met 

End of Reasons