Registration test decision

Application name	Nauo	
Name of applicant	Marlene Height, Lavinia Heron and Jody Miller	
State/territory/region	South Australia 	
NNTT file no.	SC97/8	
Federal Court of Australia file no.	SAD6021/1998	
Date application made	17 November 1997	
Date application last amended	5 April 2012	
		
Name of delegate	Renee Wallace	
I have considered this claim for registration against each of the conditions contained in ss. 190B and 190C of the Native Title Act 1993 (Cwlth).
For the reasons attached, I am satisfied that each of the conditions contained in ss. 190B and C are met. I accept this claim for registration pursuant to s. 190A of the Native Title Act 1993 (Cwlth).

	Date of decision:	29 May 2012	
___________________________________

Renee Wallace 
Delegate of the Native Title Registrar pursuant to
sections 190, 190A, 190B, 190C, 190D of the Native Title Act 1993 (Cwlth) under an instrument of delegation dated 24 August 2011 and made pursuant to s. 99 of the Act. 

Reasons for decision

Table of contents

Introduction
Application overview
Registration test
Information considered when making the decision
Procedural fairness steps
Procedural and other conditions: s. 190C
Subsection 190C(2) Information etc. required by ss. 61 and 62
Native title claim group: s. 61(1)
Name and address for service: s. 61(3)
Native title claim group named/described: s. 61(4)
Affidavits in prescribed form: s. 62(1)(a)
Application contains details required by s. 62(2): s. 62(1)(b)
Information about the boundaries of the area: s. 62(2)(a)
Map of external boundaries of the area: s. 62(2)(b)
Searches: s. 62(2)(c)
Description of native title rights and interests: s. 62(2)(d)
Description of factual basis: s. 62(2)(e)
Activities: s. 62(2)(f)
Other applications: s. 62(2)(g)
Section 29 notices: s. 62(2)(h)
Subsection 190C(3) No common claimants in previous overlapping applications
Subsection 190C(4) Authorisation/certification
Merit conditions: s. 190B
Subsection 190B(2) Identification of area subject to native title
Subsection 190B(3) Identification of the native title claim group
Subsection 190B(4) Native title rights and interests identifiable
Subsection 190B(5) Factual basis for claimed native title
Combined Reasons for s. 190B(5)
Subsection 190B(6) Prima facie case
Subsection 190B(7) Traditional physical connection
Subsection 190B(8) No failure to comply with s. 61A
Reasons for s. 61A(1)
Reasons for s. 61A(2)
Reasons for s. 61A(3)
Subsection 190B(9) No extinguishment etc. of claimed native title
Reasons for s. 190B(9)(a):
Reasons for s. 190B(9)(b)
Result for s. 190B(9)(c)

Introduction
This document sets out my reasons, as the Registrar’s delegate, for the decision to accept the application for registration pursuant to s. 190A of the Act. 
Note: All references in these reasons to legislative sections refer to the Native Title Act 1993 (Cwlth) which I shall call ‘the Act’, as in force on the day this decision is made, unless otherwise specified. Please refer to the Act for the exact wording of each condition. 
Application overview
The Registrar of the Federal Court of Australia (the Court) gave a copy of the Nauo claimant application to the Native Title Registrar (the Registrar) on 5 April 2012 pursuant to s .64(4). This has triggered the Registrar’s duty to consider the claim made in the application under s. 190A.
The Nauo application was first lodged with the National Native Title Tribunal (the Tribunal) on 17 November 1997. It was entered on to the Register of Native Title Claims (the Register) on 18 November 1997. It has remained on the Register since that date. It was subsequently accepted for registration, pursuant to s. 190A, on 5 February 2000. 
I am satisfied that neither subsection 190A(1A) nor subsection 190A(6A) apply to this claim and my reasons are as follows:
•	I am satisfied that s. 190A(1A) does not apply as the application was not amended because of an order made under s. 87A by the Federal Court; and
•	I am satisfied that s. 190A(6A) does not apply as the effect of the amendments to the application do not fall within the provisions of s. 190A(6A)(d)—Attachment S of the application details the amendments made to the application on 5 April 2012, including amendments to Schedules A, D, E, F, G, H, I, K, L, M, N, O, P and R. 
In accordance with subsection 190A(6) I must accept the claim for registration if it satisfies all of the conditions in 190B and 190C. This is commonly referred to as the registration test.
Registration test
Section 190B sets out conditions that test particular merits of the claim for native title. Section 190C sets out conditions about ‘procedural and other matters’. Included among the procedural conditions is a requirement that the application must contain certain specified information and documents. In my reasons below I consider the s. 190C requirements first, in order to assess whether the application contains the information and documents required by s. 190C before turning to questions regarding the merit of that material for the purposes of s. 190B.
Pursuant to ss. 190A(6), the claim in the application must be accepted for registration because it does satisfy all of the conditions in ss. 190B and 190C. 
Information considered when making the decision
Subsection 190A(3) directs me to have regard to certain information when testing an application for registration; there is certain information that I must have regard to, but I may have regard to other information, as I consider appropriate. 
I am also guided by the case law (arising from judgments in the courts) relevant to the application of the registration test. Among issues covered by such case law is the issue that some conditions of the test do not allow me to consider anything other than what is contained in the application while other conditions allow me to consider wider material.
For the purpose of the registration test, I have had regard to the information contained in the following documents:
•	form 1 
•	affidavits of six (6) current claimants provided by the applicant to the Registrar on 11 April 2012
•	document titled ‘Summary of the Amended Nauo Form 1’ provided by the applicant to the Registrar on 13 April 2012 
•	document titled ‘Table A’ provided by the applicant to the Registrar on 13 April 2012.  
I have not considered any information that may have been provided to the Tribunal in the course of the Tribunal providing assistance under ss. 24BF, 24CF, 24CI, 24DG, 24DJ, 31, 44B, 44F, 86F or 203BK, without the prior written consent of the person who provided the Tribunal with that information, either in relation to this claimant application or any other claimant application or any other type of application, as required of me under the Act.
Also, I have not considered any information that may have been provided to the Tribunal in the course of its mediation functions in relation to this or any other claimant application. I take this approach because matters disclosed in mediation are ‘without prejudice’. Further, mediation is private as between the parties and is also generally confidential (see ss. 94K and 94L of the Act).
Procedural fairness steps
As a delegate of the Registrar and as a Commonwealth Officer, when I make my decision about whether or not to accept this application for registration I am bound by the principles of administrative law, including the rules of procedural fairness, which seek to ensure that decisions are made in a fair, just and unbiased way. I note that the common law duty to afford procedural fairness may be excluded by express terms of the statute under which the administrative decision is made or by any necessary implication—Hazelbane v Doepel [2008] FCA 290 at [23] to [31]. The steps that I and other officers of the Tribunal have undertaken to ensure procedural fairness is observed, are as follows:
On 23 April 2012, the Case Manager for this matter wrote to the State of South Australia (the State). The letter provided the State with details of the additional material submitted by the applicant to the Registrar. It indicated my understanding that the State had been provided directly with copies of this material by the applicant. Further, the State was provided with an opportunity to comment upon the application and the additional material. The State did not provide any comment in relation to the registration of this application. 
No further procedural fairness steps were taken in relation to this matter. 

Procedural and other conditions: s. 190C
Subsection 190C(2)
Information etc. required by ss. 61 and 62
The Registrar/delegate must be satisfied that the application contains all details and other information, and is accompanied by any affidavit or other document, required by sections 61 and 62. 
The application satisfies the condition of s. 190C(2), because it does contain all of the details and other information and documents required by ss. 61 and 62, as set out in the reasons below. 
I note that I am considering this claim against the requirements of s. 62 as it stood prior to the commencement of the Native Title Amendment (Technical Amendments) Act 2007 on 1 September 2007. This legislation made some minor technical amendments to s. 62 which only apply to claims made from the date of commencement of the Act on 1 September 2007 onwards, and the claim before me is not such a claim. 
In reaching my decision for the condition in s. 190C(2), I understand that this condition is essentially procedural only and simply requires me to be satisfied that the application contains the information and details, and is accompanied by the documents, prescribed by ss. 61 and 62. This condition does not require me to undertake any merit or qualitative assessment of the material for the purposes of s. 190C(2)— Attorney General of Northern Territory v Doepel (2003) 133 FCR 112 (Doepel) at [16] and also at [35]–[39]. In other words, does the application contain the prescribed details and other information? 
It is also my view that I need only consider those parts of ss. 61 and 62 which impose requirements relating to the application containing certain details and information or being accompanied by any affidavit or other document (as specified in s. 190C(2)). I therefore do not consider the requirements of s. 61(2), as it imposes no obligations of this nature in relation to the application.  I am also of the view that I do not need to consider the requirements of s. 61(5). The matters in ss. 61(5)(a), (b) and (d) relating to the Court’s prescribed form, filing in the Court and payment of fees, in my view, are matters for the Court. They do not, in my view, require any separate consideration by the Registrar. Paragraph 61(5)(c), which requires that the application contain such information as is prescribed, does not need to be considered by me under s. 190C(2), as I already test these things under s. 190C(2) where required by those parts of ss. 61 and 62 which actually identify the details/other information that must be in the application and the accompanying prescribed affidavit/documents.
Turning to each of the particular parts of ss. 61 and 62 which require the application to contain details/other information or to be accompanied by an affidavit or other documents:
Native title claim group: s. 61(1)
The application must be 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.
The application contains all details and other information required by s. 61(1)—Part A of the application names the persons authorised by the native title claim group to make the application. Attachment A of the application contains a description of the native title claim group. 
Name and address for service: s. 61(3)
The application must state the name and address for service of the person who is, or persons who are, the applicant.
The application contains all details and other information required by s. 61(3)—Part B of the application contains the name and address for service of the persons who are the applicant.
Native title claim group named/described: s. 61(4)
The application must:
(a)	name the persons in the native title claim group, or
(b)	otherwise describe the persons in the native title claim group sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.
The application contains all details and other information required by s. 61(4)—Attachment A contains a description of the persons in the native title claim group.
Affidavits in prescribed form: s. 62(1)(a)
The application must be accompanied by an affidavit sworn by the applicant that:
(i)	the applicant believes the native title rights and interests claimed by the native title claim group have not been extinguished in relation to any part of the area covered by the application, and 
(ii)	the applicant believes that none of the area covered by the application is also covered by an entry in  the National Native Title Register, and
(iii)	the applicant believes all of the statements made in the application are true, and
(iv)	the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it, and
(v)	stating the basis on which the applicant is authorised as mentioned in (iv).  
The application is accompanied by the affidavit required by s. 62(1)(a)—the application is accompanied by affidavits of each of the three (3) persons jointly comprising the applicant. I consider that each of these affidavits speak to the matters set out in s. 62(1)(a)(i)-(v).
Application contains details required by s. 62(2): s. 62(1)(b)
The application must contain the details specified in s. 62(2). 
The application contains all details and other information required by s. 62(1)(b). 
The application does contain the details specified in ss. 62(2)(a) to (h), as identified in the reasons below.
Information about the boundaries of the area: s. 62(2)(a)
The application must contain information, whether by physical description or otherwise, that enables the following boundaries to be identified:
(i)	the area covered by the application, and
(ii)	any areas within those boundaries that are not covered by the application.
The application contains all details and other information required by s. 62(2)(a)—Attachment B (incorrectly labelled Schedule B) and Attachment B1 of the application contain information about the boundaries of the area referred to in ss. 62(2)(a)(i) and (ii)..
Map of external boundaries of the area: s. 62(2)(b)
The application must contain a map showing the boundaries of the area mentioned in s. 62(2)(a)(i).
The application contains all details and other information required by s. 62(2)(b)— Attachment C contains a map of the external boundaries of the area.
Searches: s. 62(2)(c)
The application must contain the 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.
The application contains all details and other information required by s. 62(2)(c)— Schedule D of the application contains information that pertains to any searches carried out by or on behalf of the native title claim group.
Description of native title rights and interests: s. 62(2)(d)
The application must contain 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.
The application contains all details and other information required by. 62(2)(d)—Attachment E of the application contains a description of the native title rights and interests claimed.
Description of factual basis: s. 62(2)(e)
The application must contain 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.
The application contains all details and other information required by s. 62(2)(e)—Attachment F of the application contains a general description of the claimants’ factual basis. Attachment E and Attachment G of the application also contain relevant information. 
I have only considered whether the information regarding the claimants’ factual basis contained in Attachment F addresses, in a general sense, each of the particular assertions at s. 62(2)(e)(i) to (iii) and have not undertaken an assessment of its sufficiency. Any ‘genuine assessment’ of the details/information contained in the application at s. 62(2)(e), is to be undertaken by the Registrar when assessing the applicant’s factual basis for the purposes of s. 190B(5) — Gudjala People #2 v Native Title Registrar [2008] FCAFC 157 (Gudjala FC) at [92].    
Activities: s. 62(2)(f)
If the native title claim group currently carries out any activities in relation to the area claimed, the application must contain details of those activities.
The application contains all details and other information required by s. 62(2)(f)— Schedule G of the application contains details of activities currently being carried out by the native title claim group in relation to the application area.
Other applications: s. 62(2)(g)
The application must contain 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 of compensation in relation to native title.
The application contains all details and other information required by s. 62(2)(g)—Schedule H of the application contains information that pertains to this requirement.
Section 29 notices: s. 62(2)(h)
The application must contain details of any notices given under s. 29 (or under a corresponding provision of a law of a state or territory) of which the applicant is aware that relate to the whole or a part of the area covered by the application.
The application contains all details and other information required by s. 62(2)(h)— Schedule I of the application contains information that pertains to s. 29 notices of which the applicant is aware that relate to the application area.
Subsection 190C(3)
No common claimants in previous overlapping applications
The Registrar/delegate 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)	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 the previous application being considered for registration under s. 190A.
The application satisfies the condition of s. 190C(3).
The geospatial assessment identifies that this application is the only application per the Register and Schedule of Applications—Federal Court that falls within the external boundary of this application area. I agree with this assessment. 
Thus, there are no overlapping previous applications meeting the requirements of s. 190C(3) and I do not have to further consider the issue of common claimants in any previous applications.
Subsection 190C(4)
Authorisation/certification
Under s. 190C(4) the Registrar/delegate must be satisfied that either:
(a)	the application has been certified under Part 11 by each representative Aboriginal/Torres Strait Islander body that could certify the application, 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.

Note: The word authorise is defined in section 251B.

Section 251B provides that for the purposes of this Act, all the persons in a native title claim group authorise a person or persons to make a native title determination application  . . . and to deal with matters arising in relation to it, if:
a)	where there is a process of decision–making that, under the traditional laws and customs of the persons in the native title claim group, must be complied with in relation to authorising things of that kind—the persons in the native title claim group . . . authorise the person or persons to make the application and to deal with the matters in accordance with that process; or 
b)	where there is no such process—the persons in the native title claim group . . . authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision–making agreed to and adopted, by the persons in the native title claim group . . . in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind. 

Under s. 190C(4A), the certification of an application under Part 11 by a representative Aboriginal/Torres Strait Islander body is not affected where, after certification, the recognition of the body as the representative Aboriginal/Torres Strait Islander body for the area concerned is withdrawn or otherwise ceases to have effect. 
I must be satisfied that the requirements set out in either ss. 190C(4)(a) or (b) are met, in order for the condition of s. 190C(4) to be satisfied. 
Attachment R of the application contains a certificate in relation to this application by South Australian Native Title Services Limited (SANTS). 
For the reasons set out below, I am satisfied that the requirements of s. 190C(4)(a) are met because the application has been certified by each representative Aboriginal/Torres Strait Islander body that could certify it.
The nature of the task at s. 190C(4)(a)
Section 190C(4)(a) imposes upon the Registrar conditions which, according to Mansfield J in Doepel, are straightforward—at [72]. All that the task requires of me is that I be ‘satisfied about the fact of certification by an appropriate representative body’—Doepel at [78], which necessarily entails:
•	identifying the relevant native title representative body and being satisfied of their power under Part 11 to issue the certificate; and  
•	being satisfied that the certification meets the requirements of s. 203BE—Doepel at [80]-[81]. 
Identification of the representative body
The certificate is dated 9 February 2011 and is signed Andrew Beckworth, Principle Legal Officer of SANTS. It states that SANTS performs all of the functions of a representative body for the Greater South Australian region and that it receives funding from the Australian Government pursuant to s. 203FE(1). Its functions and powers are set out in Division 3 of s. 203BE. I am satisfied on the basis of these statements in the certificate that SANTS is a representative body funded to perform the certification functions pursuant to s. 203BE. 
The geospatial assessment identifies that the application area falls entirely within the region for which SANTS is the representative body. On that basis, I am satisfied that SANTS is the only representative body that could certify the application. 
The requirements of 203BE
To be satisfied about ‘the fact of certification’—Doepel at [78], the certification must meet the requirements of s. 203BE, namely s. 203BE(4)(a)-(c).
Subsection 203BE(4)(a)
Subsection 203BE(4)(a) requires a statement from the representative body indicating that they hold the opinion that the requirements of subsections (2)(a) and (2)(b) have been met. 
The certificate contains the required statement. 
Subsection 203BE(4)(b)
Pursuant to s. 203BE(4)(b) the certificate must also briefly set out the representative body’s reasons for being of the opinion set out in s. 203BE(4)(a). 
In that regard the certificate sets out the following: 
a.	SANTS has for many years worked closely with the members of the Nauo community. 
b.	At a community meeting of Nauo representatives held on the 31st July 2010 (at which time a representative quorum was not reached) those persons in attendance agreed with the proposal to amend the native title claim, however were aware that as there was not a quorum, the meeting would have to be rescheduled.  
c.	The rescheduled community meeting was held on the 28th of August 2010 at which time, representative quorum was reached, the community in accordance with a process of decision making agreed to and adopted (there being no applicable traditional decision making process for these types of matters) authorised Jody Miller, Marlene Weetra Heigh and Lavinia Heron to continue to be the applicant and to make the amended application. 
d.	SANTS notified people who hold or may hold native title in the region of the fact and purpose of the community meeting through detailed advertisements in local and regional newspapers and sent copies of the notices to relevant Aboriginal business and community organisations in the region. Individual notices of the meeting and its purpose were sent to those members of the claim group.  
The certificate briefly sets out the representative body’s reasons for being of the opinion in s. 203BE(4)(a). 
Subsection 203BE(4)(c)
Where applicable, the certificate must also set out what has been done by the representative body to meet the requirements of s. 203BE(3) in order to comply with s. 203BE(4)(c). Section 203BE(3) relates to overlapping applications for a determination of native title. As identified in the geospatial assessment there are no overlapping applications.
The certificate contains the statement that SANTS is of the opinion that it has made all reasonable efforts to comply with the requirements of s. 203BE(3). 
It is my view that because of the absence of any overlapping applications subsection 203BE(4)(c) is not applicable to the application, and thus there is no requirement for the certificate to set out a statement in purported compliance. 
My decision  
For the above reasons, I am satisfied that the application has been certified under Part 11 by each representative Aboriginal/Torres Strait Islander body that could certify the application, thereby complying with s. 190C(4)(a). 

 

Merit conditions: s. 190B
Subsection 190B(2)
Identification of area subject to native title
The Registrar must be satisfied that the information and map contained in the application as required by ss. 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.
The application satisfies the condition of s. 190B(2). 
Area covered by the application 
Attachment B of the application, which is entitled ‘Schedule B—SAD6021/98 Nauo Native Title Claim SC97/008,’ describes the amended application area by a metes and bound description making reference to geographic coordinate points, various native title determination applications and road reserves. It excludes from the external boundary two native title determination claimant applications, being Barngarla Native Title Claim—SAD6011/98 (SC96/4) and Wirangu No 2 Native Title Claim—SAD6019/98 (SC97/6).
Attachment C of the application contains a map of the application area. It depicts the application area in a bold blue outline, showing abutting native title applications, 1:250k topographic image, scalebar, north point, coordinate grid and location diagram. 
The geospatial assessment states that the description and map are consistent and identify the application area with reasonable certainty. 
I have had regard to the identification of the external boundary in Attachment B and the map showing the external boundary at Attachment C. I am satisfied that the external boundary of the application area has been described such that the location of it on the earth’s surface can be identified with reasonable certainty.   
Areas not covered by the application – internal boundaries
Attachment B1 of the application lists general exclusions to the land and waters covered by the application. 
As to the use of such a general formulaic approach, as is utilised by the applicant in Attachment B1, this was discussed in Daniel for the Ngaluma People & Monadee for the Injibandi People v Western Australia [1999] FCA 686 (Daniel), in relation to the information required by s. 62(2)(a) and its sufficiency for the purpose of s. 190B(2). Nicholson J was of the view that such an approach ‘could satisfy the requirements of the paragraphs where it was the appropriate specification of detail in those circumstances’. His Honour noted the difficulty in reconciling the need for detail as specified by s. 62(a)(i) and (ii), the requirements of the registration test at s. 190B(2) and the ‘state of knowledge of the parties at different stages of the application’, but formed the view that consideration of these issues was necessary in order to assess the application against these requirements—at [30] to [38]. 
In undertaking this consideration I have had regard to the particulars of the application and information contained within the application as to the likely state of knowledge of the applicant in regard to such matters. The application was made in 1997. Schedule D of the application sets out that in 2008 the Federal Court requested that the Tribunal endeavour to identify those parts of the claim area in respect of which any native title rights and interests may have been extinguished (either wholly or partially). The Tribunal produced the requested information in 2009, but the applicant has not been in a position to confirm the accuracy of the information. The State has also provided the applicant with some information pertaining to this, but again the applicant has not been in a position to confirm the accuracy of the information produced.  
In considering the above, I am mindful of the fact that it is often the case that issues of this kind do not reach resolution until close to the conclusion of negotiations or the hearing of the matter. As noted in Daniel by Nicholson J ‘...issues of validity in respect of interests may be incapable of concession until the native title determination decides relevant issues’—at [29].
It is in my view appropriate, given the above particularities, that the written description contain general exclusions of the kind at Attachment B1. In my view, the written exclusions in Attachment B1 adequately reflect the state of knowledge of the applicant at this time.
Decision
I have formed the view that both the written description and the map identify the area with reasonable certainty. Thus, it is my view that ‘the information and map contained in the application as required by ss. 62(2)(a) and (b) are sufficient for it to be said with reasonable certainty whether the native title rights and interests are claimed in relation to particular land or waters’.               
Subsection 190B(3)
Identification of the native title claim group
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.
The application satisfies the condition of s. 190B(3).
The description of the native title claim group appears at Attachment A of the application as follows: 
Under the relevant traditional laws and customs of the Central Lakes cultural region, and Nauo traditional society, the Nauo Native Title claim members comprise the following: 
1.	Mary, a Nauo woman born c. 1840s and who was the mother of Henry Weetra is acknowledged as an apical ancestor for the Nauo Native Title claim. 
2.	Henry Weetra was born c. 1869. He is acknowledged as an apical ancestors [sic] for the Nauo Native Title claim. Henry and his partner Eliza had 13 children. 
3.	Essie Weetra was born 16 March 1891 is acknowledged as an apical ancestor of the Nauo Native Title claim. 
4.	Hubert James Weetra was born 1892 is acknowledged an apical ancestor of the Nauo Native Title claim. Hubert had two spouses and 14 children all of whom comprise families of Weetra. His biological descendants are acknowledged as members of the Nauo Native Title claim group. 
5.	Harold James Weetra was born 30 November 1893. He is acknowledged as an apical ancestor of the Nauo Native Title claim. Harold and his spouse had 11 children who are acknowledged as part of the Native Title claim group and include the families of Angie, Martin, Miller, Rigney, Sansbury and Weetra. 
6.	Arthur Arnold Weetra was born 4 December 1895. He is acknowledged as an apical ancestor of the Nauo native title claim. 
7.	Harry Weetra was born 1896. He is acknowledged as an apical ancestor of the Nauo native title claim. Harry and his spouse had 15 children. His biological descendants are acknowledged as part of the Nauo Native Title claim group and include the families of Branson, Buzza, Davey, Garling, Huish, Kropinyeri, Larking, McCormack, Sapinski, Stimson, Sutherland, Wanganeen Weetra, and Williams families.
8.	Henry George Weetra was born 30 October 1897. He is acknowledged as an apical ancestor of the Nauo Native Title claim. 
9.	Spurling Weetra was born March 1900. He is acknowledged as an apical ancestor of the Nauo Native Title claim. 
10.	 Maxwell Sutton Weetra was born 23 June 1902. He is acknowledged as an apical ancestor of the Nauo native title claim. Maxwell and his spouse had 6 children. His biological descendants are acknowledged as part of the Nauo Native Title claim group and include the families of Height, Ramp, Schroeder and Weetra.  
11.	Glaston Weetra was born 12 May 1904. He is acknowledged as an apical ancestor of the Nauo Native Title claim. 
12.	Leonard Weetra born 6 December 1905 is acknowledged as an apical ancestor of the Nauo Native Title claim. Leonard and his spouse had 4 children. His biological descendants are acknowledged as part of the Nauo Native Title claim group and include the families of Newchurch, Sansbury and Weetra. 
13.	Cecil Spencer Weetra born 1910 is acknowledged as an apical ancestor of the Nauo Native Title claim. Cecil and his spouse had 8 children. His biological descendants are acknowledged as part of the Nauo Native Title claim group and include the families of Anderson, Heron, Warrior and Weetra. 
14.	Teresa Lydia Weetra was born 9 March 1913. She is acknowledged as an apical ancestor of the Nauo Native Title claim. 
15.	Ruth Weetra who was the last child of Henry and Eliza Goldsmith was born August 1917. She is acknowledged as an apical ancestor of the Nauo Native Title claim.
and the descendants of those above persons. 
A person is acknowledged as a Nauo person if that person has been raised by an acknowledged Nauo claim group member and identifies as a Nauo person, and is identified by other members of the claim group.  

The nature of the task at s. 190B(3)(b)
From the description of the native title claim group contained in Attachment A (and outlined above), it follows that the conditions of s. 190B(3)(b) are applicable to this assessment. Thus, I am required to be satisfied that the persons in the native title claim group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group. 
In Doepel, Mansfield J held that the focus of this task was to consider ‘whether the application enables the reliable identification of persons in the native title claim group’ —at [51]. 
The question, as it was for the court in Western Australia v Native Title Registrar (1999) 95 FCR 93; [1999] FCA 1591(WA v NTR), is whether applying the conditions (or rules) specified in Attachment A will allow for a sufficiently clear description of the native title claim group in order to ascertain whether a particular person is in that group. 
Of this, Carr J in WA v NTR stated that: 
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. It is more likely to result from the effects of the passage of time and the movement of people from one place to another. The Act is clearly remedial in character and should be construed beneficially – at [67]. 
Consideration of the description 
The description of the native title claim group is such that it essentially includes those persons who are the descendants of a number of named ancestors. All of those persons named as ancestors are themselves descendants of Mary, a Nauo woman born in the 1840s. The description also includes the statement that a person is acknowledged as a Nauo person if they have been raised by an acknowledged claim group member, if they identify as a Nauo person and are identified by other members of the group. I do not, however, understand these to be additional criteria of membership to the group, but rather a statement that those who fall within the description of being descendants from the named persons are taken to be acknowledged as members of the Nauo native title claim group. In that regard, it is my view that there is only one condition or rule in relation to membership of the group, being descent from the persons listed.   
Describing a claim group in reference to named ancestors is one that has been accepted by the Court as satisfying the requirements of s. 190B(3)(b): see WA v NTR at [67]. I am of the view that with some factual inquiry it will be possible to identify the persons who fit the first part of the native title claim group description.
In my view, the description of the native title claim group is such that it can be ascertained whether any particular person is a member of the group.        
Subsection 190B(4)
Native title rights and interests identifiable
The Registrar must be satisfied that the description contained in the application as required by s. 62(2)(d) is sufficient to allow the native title rights and interests claimed to be readily identified.
The application satisfies the condition of s. 190B(4).
In Doepel, Mansfield J accepted it was a matter for the Registrar or her delegate to exercise ‘judgment upon the expression of the native title rights and interests claimed’. Further, his Honour considered that it was open to the decision-maker to find, with reference to s. 223 of the Act, that some of the claimed rights and interests may not be ‘understandable’ as native title rights and interests—at [99] and [123]. In that regard, however, I will undertake an examination of the rights and interests with reference to s. 223 when considering the condition at s. 190B(6).  
Primarily, the test here is one of ‘identifiability’. That is ‘whether the claimed native title rights and interests are understandable and have meaning’—Doepel at [99]. 
The native title rights and interests claimed appear at Attachment E of the application. The applicant claims the right to possess, occupy, use and enjoy the lands and waters covered by the application (i.e. exclusive possession), where such a right can be recognised. The applicant also claims a number of non-exclusive native title rights and interests that relate primarily to accessing the application area and conducting certain activities on the application area. 
It is my view that the native title rights and interests, claimed in the application, are understandable and have meaning. The description contained in the application is sufficient to allow the native title rights and interests to be readily identified.   
Subsection 190B(5)
Factual basis for claimed native title
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, and
(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 interest, and
(c)	that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.
The application satisfies the condition of s. 190B(5) because the factual basis provided is sufficient to support each of the particularised assertions in s. 190B(5), as set out in my reasons below.
I have considered each of the three assertions set out in the three paragraphs of s. 190B(5) in turn before reaching this decision.
Combined Reasons for s. 190B(5)
The nature of the task at s. 190B(5)
There are clear principles established by the Court which must guide the Registrar when assessing the sufficiency of a claimants’ factual basis. They are: 
•	the applicant is not required ‘to provide anything more than a general description of the factual basis’— Gudjala People #2 v Native Title Registrar [2008] FCAFC 157 (Gudjala FC) at [92];
•	the nature of the material provided need not be of the type that would prove the asserted facts —Gudjala FC at [92];
•	the Registrar is not to consider or deliberate upon the accuracy of the information/facts asserted—Doepel at [47]; and 
•	the Registrar is to assume that the facts asserted are true, and to consider only whether they are capable of supporting the claimed rights and interests. That is, is the factual basis sufficient to support each of the assertions at s. 190B(5)(a) to (c)—Doepel at [17]. 
It is, however, important that the Registrar consider whether each particularised assertion outlined in s. 190B(5)(a), (b) and (c) is supported by the claimants’ factual basis material. In that regard, the decisions of Dowsett J in Gudjala [2007] and Gudjala People #2 v Native Title Registrar [2009] FCA 1572 (Gudjala [2009]) give specific content to each of the elements of the test at s. 190B(5)(a) to (c). The Full Court in Gudjala FC, did not criticise generally the approach that Dowsett J took in relation to these elements in Gudjala [2007], including his Honour’s assessment of what was required within the factual basis to support each of the assertions at s. 190B(5). His Honour, in my view, took a consonant approach in Gudjala [2009].
In my view, it follows from those decisions that it is fundamental to the test at s. 190B(5) that the applicant describe the basis upon which the claimed native title rights and interests are alleged to exist. Accordingly, this was held to be a reference to rights vested in the claim group and further that ‘it was necessary that the alleged facts support the claim that the identified claim group [emphasis added] (and not some other group) held the identified rights and interests (and not some other rights and interests)’—Gudjala [2007] at [39]. This, in my view, confirms the need for adequate specificity within the claimants’ factual basis material in order to satisfy the Registrar of its sufficiency for the purpose of s. 190B(5).
Section 190B(5)(a) - that the native title claim group have, and the predecessors of those persons had, an association with the area
The Law
On this aspect of the factual basis, Dowsett J observed that the factual basis must demonstrate that the whole claim group presently has an association with the claim area and that its predecessors also had an association since sovereignty, or at least since European settlement. This, however, should not be taken to mean ‘that all members must have such an association at all times’ but rather that there be some ‘evidence that there is an association between the whole group and the area’ and a similar association of the predecessors—Gudjala [2007] at [52]; Gudjala FC at [90] to [96]. 
Further, I am to be informed as to the nature of the claimants’ association with the application area on the basis of the information provided, but am not obliged to accept broad statements which are not geographically specific—Martin v Native Title Registrar [2001] FCA 16 at [26].
The claimant’s factual basis in support of the assertion at s. 190B(5)(a)
The native title claim group is defined in reference to the apical ancestor Mary, a Nauo woman who was born in the 1840s. It is her descendants that comprise the native title claim group. It is asserted that the native title claim group identify as Nauo people because, they are direct descendants from those Aboriginal persons who were in occupation of the application area at the time of sovereignty, they have a strong sense of the Nauo society and the wider cultural region, they identify with the land and waters within the application area as it has always been Nauo country and they continue to be bound by the Nauo traditional laws and customs—see Attachment F of the application.
Association of the predecessors of the native title claim group with the application area
Attachment F of the application sets out references and extracts of historical/anthropological material which goes to supporting the assertion that the group’s predecessors were associated with the application area, including the following: 
Schurmannn (1844:39) defines ‘nauo’ or ‘nawo’ as the “the national name of the native tribe inhabiting the country about Coffin’s Bay.”
Schurmann’s ethnographic observations were published in 1879 in ‘The Native Tribes of South Australia.’ In this publication, Schurmann (1879;249-50) describes Nauo as one of the ‘tribes’ of Port Lincoln. 
Schurmann presented clear evidence of the existence of a distinct Nauo community based on his detailed observations. He recorded information about laws, customs and practices relating to social organisation, initiatory rites and practices, religious beliefs and ritual ceremonies, respect and deference to older persons in the absence of formalised structures of authority, and the avoidance of naming deceased persons. 
George Angas, a colonial artist who visited South Australia in the early 1840s also offered a number of observations about Aboriginal occupation in Nauo Native Title claim area. In his volume titled ‘Savage Life and Scenes in Australia and New Zealand’, Angas (1847:108) noted that the “Pankalla and Nauo tribes inhabit the country around Port Lincoln and to the westward of Spencer’s Gulf, beyond Coffin’s Bay.” Angas (1849:189) echoed Schurmann’s observations in noting the large number of Aboriginal people in this area: 
Several hundred natives had assembled – belonging chiefly to the Pankalla, the Nauo and the Battara tribes [Tindale 1940:180 noted that Battara was another name for the Nauo people. The expression Battara meant scrubby gum] – in expectation of having a supply of flour served out to them as a present on the arrival of the governor, in which they were not disappointed. 
Angas (1849:109) noted the associated of Nauo people with the area around Coffin Bay. 
In 1904 anthropologist A.R Howitt published the volume ‘The Native Tribes of South-East Australia’, which detailed Aboriginal customs and locations of tribes, and included a description of the Nauo boundary. According to Howitt (1904:47), “[e]xtending West from Port Lincoln, as far as Point Brown, and inland to the Gawler Ranges, is the Nauo or Willuro tribe.”
As noted above, the missionary Schurmann recorded as far back as the 1840s that the Nauo language was spoken in the southern and western parts of the Eyre Peninsula region. Contemporary linguistic research by Luise Hercus and others confirms that the Nauo were the traditional occupants of the area claimed. Hercus and Simpson (2001:285-287) have noted a number of locations in the south-western region of the Eyre Peninsula such as Wanilla and Sheringa, as distinct Nauo place names. In particular, a number of locations in the Coffin Bay region, such as Mungerowie, Woolawee and Wepowie are also Nauo names, reflected in the ‘awi’ (meaning water) name endings. Domagalski’s local history of the Edillilie region in the south-east of the claim area also notes that the Nauo were the occupants of that region (1990:7-8)...
Tindale has recorded as a Nauo woman, as the apical ancestor of the Nauo claim group and the mother of Henry Weetra as “FB [Full Blood] of Streaky Bay” (Tindale Genealogy no 72 dated 2 March, 1939). The mother of Henry Weetra was subsequently identified as Mary, as confirmed in the affidavit of [current claimant 1] (para. 3). 
Henry Weetra was born at Weetra station in the south west of the Eyre Peninsula c. 1869 and was named after that location because of his association with it, a common naming practice at the time throughout Australia. According to Schurmann (1879:224) newborn children “receive the name of the place where it was born”, as well as a first name. Weetra – sometimes spelt as ‘Witera’ or ‘Weetera’ – is located 25 km north-west of Venus Bay. 
Henry remained close to the application area, living at times in the Poonindie mission, just north of Port Lincoln. 

The factual basis around the association of the claim group’s predecessors is also set out in affidavits of claim group members. [current claimant 1], in her affidavit dated 28 April 2011, states that she is a Nauo woman through her father Harry Weetra. Her grandfather, Henry Weetra (the son of apical Mary) was born on Weetra station. Both he and his mother worked on Weetra station. Weetra station is part of Nauo traditional country. She was told by her father that her grandfather spent a great deal of time around Venus Bay (when he was a child). He also went through the law as a young man. She says that entitlement to Nauo country comes from being a descendant of Henry Weetra. She also speaks to the continuity of that association dating back to the period of her predecessors and spanning to the current claimants. She details how as a young girl she spent time in the application area with her family. Similarly, now that she has children and grandchildren, they too spend time on the application area and she has taught them about the importance of their country and the laws and customs. Some of this information is also contained in the affidavits of other current claimants. 
Association of the native title claim group with the application area
Details pertaining to the continuing association of the native title claim group with the application area are primarily contained within the affidavits of current claimants. 
[current claimant 2] is a granddaughter of Harry Weetra and a great-granddaughter of Henry Weetra (both ancestors who are named in Attachment A). In her affidavit dated 28 April 2011 she says that she was told by her father of her Nauo identity. Whilst growing up with her family, she lived and travelled throughout the application area. She says that they went to places such as Coffin Bay, Port Neil, Lock, Farm Beach, Sheringa, Lake Malata, Lake Greenly and Kiana (‘all around Nauo land’). It was her father and her grandfather who taught her about Nauo country. She has subsequently taught her children about Nauo country and has continued to go out on country with them. She speaks to a number of significant sites and sacred places within the application area, including: 
[Text Deleted for cultural and customary reasons]
[current claimant 3], in his affidavit dated 17 August 2011, says that he is Nauo as he can trace his ancestry back to Henry Weetra. Of Nauo country and the association of the claim group, he states that: 
I was taught where Nauo country is. It starts at the bottom of the Gawler Ranges and extends through the Middleback Ranges, which includes some of the caves near Corunna station—at [4]. 
[Family members names deleted] have told me of my great grandfathers travel patterns through Nauo country, and how Henry lived off the land—at [5]. 
I was taught that the heartland of Nauo country was Port Kenny, Elliston, Talia, Sheringa, Mount Wedge region, the Polda Basin, Coffins Bay, and up to Cowell—at [6]. 
In my youth I recall travelling regularly in Nauo country with family members, and some of the places we visited and camped included Talia, Sheringa, Mount Wedge, Tungketta and Bascombe Well National Park. We would visit these areas two or three times per year, particularly in the warmer months and we would be accompanied by many extended Nauo family members—at [7]. 
We would camp on the beaches and fish and hunt in certain areas—at [8]. 
I also fish in parts of the claim area, particularly around the Elliston/Sheringa regions. Although I specifically avoid going to the town of Elliston because of the massacre of our people there in the 1800’s—at [23].   
[current claimant 4], in his affidavit dated 18 August 2011, states that his Nauo identity comes from his great-grandfather, Henry Weetra. He was told that his great-grandfather was born on Weetra station. He was taught by his father and other Nauo people that Nauo country extends from Port Lincoln up to Elliston. Inland, he says that it goes through Cleve and Lock to Cowell on the eastern coast and then back down to Port Lincoln. He remembers travelling as a child over Nauo country and has continued to do so throughout his lifetime. He now travels and camps on the application area with his children and grandchildren. 
[current claimant 5] was born at Port Lincoln. In his affidavit dated 6 September 2011 he states that he takes his identity as a Nauo man from his father. He can trace his ancestry back to Henry Weetra. He says that Port Lincoln is part of his country and that Nauo country extends up to and around Elliston. As a boy, he travelled throughout Nauo country and was taught about the land. He has continued to do so in his adulthood.   
Is the claimant’s factual basis material sufficient to support the assertion at s. 190B(5)(a)? 
In Gudjala [2007] Justice Dowsett considered the requirements of s. 190B(5) generally and, in particular, the necessity to set out within the claimants’ factual basis material ‘the relationship which all members claim to have in common in connection with the relevant land.’ This, in my view, must be considered in conjunction with his Honour’s statement that the facts alleged must ‘support the claim that the identified claim group (and not some other group) held the identified rights and interests (and not some other rights and interest)’—at [39] and [40]. These principles, in my view, are pertinent in examining the sufficiency of the claimants’ factual basis for the purpose of the assertion at s. 190B(5)(a) as they elicit the need for the factual basis material to provide information pertaining to the identity of the native title claim group, the predecessors of the group, and the nature of the association with the application area.   
From the factual basis material outlined above it is clear that the relationship which all members have in common arises from their shared ancestry from the identified apical ancestors, being Mary (a Nauo woman) and her son Henry Weetra. The material demonstrates the importance given by claimants to their Nauo identity and also that current claimants retain a thorough knowledge of their predecessors’ history and association with the claim area. 
Thus, in my view, there is a clear identification of the native title claim group, being those who share a common descent from the identified predecessors. There is further explanation, and the setting out of factual details, pertaining to the relationship and association that these predecessors had with the application area. The factual basis that goes to the history of that association dates back to the 1840s, with details as to the association of the ancestor, Mary, and more generally to the Nauo people. Whilst it is not stated within the factual basis material, it is my view that it is implicit from this information (primarily the historical record) that this time period is around or just prior to sustained contact with the application area.
The factual basis material also elicits the nature of the association that the native title claim group asserts to have with the application area, being both of a physical and spiritual kind. Claimants provide details of living, travelling on and visiting the application area as well as speaking to the traditional stories and myths, which they assert give rise to their spiritual connection with Nauo country.   
There is in my view, particularly within the affidavits, a factual basis that goes to showing the history of the association that those members of the claim group have, and that their predecessors had, with the application area—see Gudjala [2007] at [51]. For instance, each of the persons in the affidavits speaks to their own association as well as to that of their parents, grandparents and great-grandparents. It also speaks to the generation of current claimants and their association. This is particularly evident in the following extracts from the affidavit of [current claimant 1] (dated 28 April 2011), a Nauo woman:
I am a Nauo woman. I leart from my father, that I was a Nauo person...Dad was a Nauo man, as was my grandfather Henry Weetra. I am widely acknowledged as a Nauo woman by my community and other Aboriginal people. Nauo is the name of our Aboriginal tribe and we were called Nauo because of the area in which we lived, which was the southern tip of Eyre Peninsula bounded by Port Kenny, Wudinna and Anna Bay. It was where my family roamed for many years following the food sources in different seasons. 
Henry Weetra was born on Weetra station. His mother was Mary, a Nauo woman. Henry and Mary lived and worked on Weetra station. Henry was born around 1869...
I remember as a young girl that men’s ceremonies took place in the bush when I went camping with my family in the claim area, including the Elliston, and Mt Wedge areas, and down to Coffin Bay.
I taught my children from an early age that they were Nauo and they strongly identify as Nauo. I have also reinforced this identity with my grandchildren, great grandchildren and now great great grandchildren. 
Over the years we camped all around Nauo country, some of our favourite spots which we visited more often than most, included, Mount Wedge, Sheringa and Coffin Bay. 
In my view, such information goes to showing the association ‘between the whole group and the area’—Gudjala [2007] at [52]. The information and factual basis within the affidavit material provides tangible examples, from members of the claim group, of how the whole group and its predecessors are associated with the area over the period since soveriegnty (or at least since European contact). It follows that in my view, each of the affidavits from current claimants provides sufficient examples demonstrating an association between the whole native title claim group and the application. 
I am satisfied that the factual basis material is sufficient to support the assertion at s. 190B(5)(a). 
Section 190B(5)(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
In Gudjala [2007], Dowsett J formed his understanding in relation to what is required to support this assertion in reference to the decision of the High Court in Members of the Yorta Yorta Aboriginal Community v State of Victoria & Ors (2002) 214 CLR 422;[2002] HCA 58 (Yorta Yorta). His Honour, thus, accepted that the expression ‘traditional laws acknowledged by, and traditional customs observed by’ is of a similar vein to that employed in s. 223 of the Act and, that the meaning to be afforded to the term ‘traditional’ can be derived from cases that explore s. 223 (see Gudjala—at [26] and [62] to [66] noting that this aspect of the judgment was not criticised by the Full Court, and see Gudjala People #2 v Native Title Registrar [2009] FCA 1572 (Gudjala [2009])—at [19] to [22]. 
It follows that it is appropriate that my consideration of the claimant’s factual basis material in support of this assertion has also been informed by the relevant principles set down in Yorta Yorta, including that: 
•	‘A traditional law or custom is one which has been passed from generation to generation usually by word of mouth or common practice’—at [46]. 
•	‘[T]he origins of the content of the law or customs concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty..’—at [46]. 
•	‘[T]he normative system...is a system that has had a continuous existence and vitality since sovereignty’—at [47]. 
•	‘When the society whose laws and customs existed at sovereignty ceases to exist, the rights and interests in land to which these laws and customs gave rise, cease to exist’—at [53].
•	‘[D]emonstrating some change to, or adaptation of, traditional law or custom or some interruption of enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim’—at [83]. 
Pre- Sovereignty Society
Attachment F of the application asserts that the historical and ethnographic record points to clear evidence of the existence of a distinct Nauo community at the time around contact, being the early to mid 1800s. The following are some extracts from the information cited in Attachment F, which go to the nature of the asserted pre-sovereignty society: 
Schumann presented clear evidence of the existence of a distinct Nauo community based on his detailed observations. He recorded information about laws, customs and practices relating to social organisation, initiatory rites and practices, religious beliefs and ritual ceremonies, respect and deference to older persons in the absence of formalised structures of authority, and the avoidance of naming deceased persons. He also recorded information about laws and customs associated with gathering, hunting and exchange. 
The Nauo are a distinct and identifiable community group, and are part of the broader society that comprises the Central Lakes Cultural region, an area which encompasses the western region of the Eyre Peninsular to the far north-east of South Australia and beyond. According to Elkin the ‘Lakes Group’ is “separated roughly by a line drawn from about Charlotte Waters to Oodnadatta, Stuart Range, Lake Gairdner and Venus Bay” (1931:50). This cultural region consists of over 20 different groups, including Nauo, and the Barngarla (Hemming and Clark 1991:7,16). 
Sociologically, a society is characterised by a number of institutional areas: polity, or political institutions, economy, religion, education and family (Najman and Western 1988: xiv). These characteristics were observed by Schurmann as early as the 1840s and are evident among the Nauo today, although there have been some modifications, as all societies continually experience some changes. 
Schurmann (1879:226) noted that while the Nauo had no formal political structures, there was a distinct form of authority, evident in the marked deference to older or senior persons by others. In particular, deference was paid to those with specialised ritual knowledge which Schurmann described as “certain mysterious rites known only to the grown up men”.        
Traditional laws and customs   
Attachment F of the application and the affidavits of current claimants speak to the content of the group’s traditional laws and customs. Primary amongst those laws and customs is the recognition of common ancestry as the basis for Nauo group membership and Nauo identity. Attachment F of the application asserts that: 
Mary and Henry Weetra remain the significant reference point for contemporary Nauo descendants, reflecting the premise that “an appeal to common ancestry remains the cornerstone of landed group identity in a particular region...
Descent group membership provides a Nauo person with kin-group identity, and also the means of identification with country: it is able to “confer a particular of association” with a specific locality, or region (Sutton 2003:213). For the Nauo people this is the Nauo Native Title claim area. While Nauo claimants may also have rights and interests in other Native Title claim areas, many have asserted their Nauo identity as their primary one.      
The continuity and content of this law as to the basis of group membership for the Nauo people is also reflected in the affidavit material. Each of the claimants speaks to their Nauo identity and asserts that their entitlement to Nauo country stems from being a descendant of Mary and Henry Weetra. For instance, in the affidavit of [current claimant 5], dated 6 September 2011, he states that: 
[Text identifying current claimant 5 deleted]. 
I am a member of the Nauo people. I take my Nauo identity from my father, who was a Nauo man. I can trace my ancestry as far back as the Nauo apical ancestor Henry Weetra. I was taught this by my father and his father. 
There is a Nauo language and although it is not spoken much, it is a marker of our identity. 
According to our laws and customs one may be Nauo through adoption and being raised by a Nauo person who traces their ancestry back to a Nauo ancestor. 
Attachment F of the application also speaks to the content of other laws and customs of the Nauo people as they have been observed in the historical record and as they continue in the present context. It explains how those laws and customs inform and give rise to the native rights and interests of the Nauo people in the application area. The information is set out in some detail and the following contains selected extracts of that material: 
Schurmann (1879:226-243) observed the religious ritual practices and beliefs of Nauo people, and also noted the gender restrictions on some aspects of these beliefs and practices...In her discussion, [a current claimant] has emphasised how knowledge of religious site information and associated rituals may be gender restricted, and ensures that ritual practices and information transmitted to her orally by upper generations of Nauo people continue to be passed down to future generations of Nauo people where appropriate. 
Schurmann (1879) has described how the Nauo accessed and moved about the application area undertaking a whole range of activities...Frank Kent also informed Tindale that Nauo people in the Coffin Bay region did likewise, several decades after Schurmann’s observations, noting in particular activities such as hunting, foraging and camping (1928:114)...These affidavits [of current claimants] describe a broad range of activities in the Nauo Native Title claim area...They indicate that there are standards, rules and constraints, as part of a continuing normative system associated with these rights and interests that are evidence of the observance of traditional laws and customs. 
Schurmann (1879:218-220) observed the hunting practices that the Nauo undertook. He wrote that “all description of game, from the kangaroos down to the smallest marsupial species, and all kinds of birds, from the emu to the wren, constitute food for the Aborigines of this district, nor are snakes and other reptiles by any means despised”...The hunting of such game continues today, as evident in the affidavit of [a current claimant] (para 13) who observed the gender balance in this form of activity, as had Schurmann, with Nauo male members hunting a range of animals such as kangaroo, emu, wombat, hares and lizards. In his affidavit (para 9) [a current claimant] also noted this gender based activity, and how certain parts of the meat were given to particular individuals (paras 18-20), which is also consistent with Schurmann’s observations. This highlights the current observance and practice of rules that are part of Nauo traditional law and customs, in particular the respect for authority and senior persons, and sharing. 
The affidavit material also provides information that goes to supporting the assertion at s. 190B(5)(b). The current claimants speak to laws and customs that have been taught to them by their parents, grandparents and other members of the native title claim group. In the affidavit of [current claimant] he states that when he was growing up he was taught how to do things the ‘Nauo way’ by his uncles. He was also taught about the old customs in relation to hunting and preparing meat. He has taught these customs and protocols to his children and he continues to hunt, fish and gather the natural resources on the application area in accordance with the traditional laws and customs that he has been taught.  
Is the claimant’s factual basis sufficient to support the assertion at s. 190B(5)(b)
In Gudjala [2009], Dowsett J discussed some of the factors that may guide the Registrar in assessing the asserted factual basis, including: 
•	that the factual basis demonstrate the existence of a pre-sovereignty society and identify the persons who acknowledged and observed the laws and customs of the pre-sovereignty society—at [37] and [52];
•	that if descent from named ancestors is the basis of membership to the group, that the factual basis demonstrate some relationship between those ancestral persons and the pre-sovereignty society from which the laws and customs are derived—at [40]; 
•	that the factual basis contain some explanation as to how the current laws and customs of the claim group can be traditional (that is laws and customs of a pre-sovereignty society relating to rights and interests in land and waters). Further, the mere assertion that current laws and customs of a native title claim group are traditional, is not a sufficient factual basis for the purposes of s. 190B(5(b)—at [52], [55] and [69]; and 
•	that the factual basis contain some details of the claim group’s acknowledgement and observance of those traditional laws and customs pertaining to the claim area—at [74].   
It is apparent from the information before me that not much is known in relation to the nature of  the relevant society as it was at the time of sovereignty. The history of the claim group begins around the 1840s with the birth of the apical ancestor Mary (providing information that identifies her in the historical record as a Nauo woman). There is also information within the factual basis material about the Nauo people generally and their presence in the claim area around this time. From the information in the material it is possible to infer that this time period is close to when sustained contact with the area was occurring. There is some information within Attachment F that goes to the impact this period had upon the Nauo community. 
As with most native title claimant applications, the material before me calls for a number of inferences to be made in regard to the pre-sovereignty society and its connection with the native title claim group and the relevant traditional laws and customs of the group. In Gudjala [2009] Dowsett J acknowledged that the history of a claim group dating back to sovereignty may not be known, ‘[h]owever other matters may be known which assist in demonstrating the traditional nature of the claim group’s laws and customs.’ This could include information that goes to the period before or shortly after contact, which may ‘permit an inference that the claim group is a modern manifestation of a pre-sovereignty society, and that its laws and customs have been derived from that earlier society.’ Such an approach also, in his Honour’s view, necessitates some comparison of the earlier society with that of the latter society—at [30].
In assessing the claimant’s factual basis material in support of this assertion, I have observed that there is some material from the historical record which goes to demonstrating the existence of the relevant society at or around the time of contact with the application area. The material also elicit a comparison of that historical information with the information pertaining to the characteristics of the society in its current form. In considering whether the information is of a kind that permits an inference that the claim group is a ‘modern manifestation’ (Gudjala [2009]) of the earlier society, I have had particular regard to the following: 
•	the factual basis material identifies the persons who acknowledged and observed the laws and customs of the pre-sovereignty society, being those Nauo predecessors identified in the historical record as associated with the application area;
•	the information within the factual basis material goes to supporting that current claimants have a link with those persons identified as being associated with the claim area around the time of sovereignty. This link, it is asserted, is based upon descent from those identified ancestral persons and each of the affidavits of current claimants demonstrates that link; and  
•	the factual basis contains information that shows the similarities and any differences between the laws and customs of the earlier and later society. 
There are, of course, limitations to the claimants’ factual basis material stemming primarily from the limited detail in the historical record as to the nature and features of the Nauo society at the time of contact. These limitations are, to some extent, alleviated by the oral record of current claimants, which dates back to their immediate predecessors. I do not make the above observations in the sense that I am undertaking any kind of forensic exercise in relation to the factual basis material, but do so to expound my reasons on this point. 
While cognisant of those limitations, I have formed the view that the claimants’ factual basis material does address the essence of the matters outlined in the decisions of Gudjala [2007] and Gudjala [2009], including the identification of a pre-sovereignty society and the persons who acknowledged and observed the traditional laws and customs of that society, some explanation of how the current laws and customs of the native title claim group have been derived from that society and details of the claim group’s acknowledgement and observance of those laws and customs in relation to the application area. 
Within the factual basis material there is a clear claim of the continuous existence of the laws and customs of the Nauo people, and a body of persons acknowledging and observing those laws and customs dating back to the time of sovereignty. The factual basis material sets out some of the laws and customs that are said to be of that society. Further, some of the information within the application provides examples of how such laws and customs have been acknowledged and observed by the native title claim group and their predecessors, thus inviting the inference that those laws and customs have ‘their roots in the pre-sovereignty laws and customs’—Gudjala [2009] at [22].    
I am satisfied that there is a factual basis sufficient to support this assertion.        
Section 190B(5)(c) - that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.
This part of the test is concerned with whether the factual basis is sufficient to support the assertion that the native title claim group has continued to hold the native title rights and interests claimed. In my view, this assertion relates to the continued holding of native title through the continued observance of the traditional laws and customs of the group.
In addressing this aspect of the test in Gudjala [2009], Dowsett J considered that where the claimants’ factual basis relied upon the drawing of inferences, that: 
[C]lear evidence of a pre-sovereignty society and its laws and customs, of genealogical links between that society and the claim group, and an apparent similarity of laws and customs may justify an inference of continuity’—at [33]. 
In forming my view in relation to this requirement I have considered my reasons above in relation to s. 190B(5)(b) and have also drawn upon information within the factual basis material that relates to the laws and customs of the society at contact and the link between current claimants and the identified predecessors of the Nauo. I have also considered the affidavits of current claimants, which in my view go to demonstrating the continuity of laws and customs through a number of generations of Nauo claimants. 
I am satisfied that there is a factual basis sufficient to support this assertion.        
Subsection 190B(6)
Prima facie case
The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established.
The application satisfies the condition of s. 190B(6). The claimed native title rights and interests that I consider can be prima facie established are identified in my reasons below.  .
The nature of the task at s. 190B(6)
In considering the application against the requirements of this section, the test is that I must consider that, prima facie, the right or interest is established. Thus, ‘if on its face a claim is arguable, whether involving disputed questions of fact or disputed questions of law, it should be accepted on a prima facie basis’—Doepel at [135].  
The test is said to involve some ‘measure’ and ‘weighing’ of the factual basis and imposes ‘a more onerous test to be applied to the individual rights and interests claimed’—Doepel at [126], [127] and [132]. 
In undertaking the task at s. 190B(6), I must have regard to the relevant law as to what is a native title right and interest, specifically the definition of native title rights and interests contained in s. 223(1) of the Act. That is, I must examine each individual right and interest claimed in the application to determine if I consider, prima facie, that they:
•	 are possessed under traditional law and custom in relation to any of the land or waters in the application area
•	 are native title rights and interests in relation to land or waters: see chapeau to s. 223(1)
•	have not been extinguished over the whole of the application area.  
The ‘critical threshold question’ for recognition of a native title right or interest under the Act ‘is whether it is a right or interest ‘in relation to land or waters’—Western Australia v Ward [2002] HCA 28 (Ward HC), Kirby J at [577]; remembering ‘[t]hat the words ‘in relation to ’are of wide import’—Northern Territory of Australia v Alyawarr, Kaytetye, Wurumunga, Wakaya Native Title Claim Group [2005] FCAFC 135 (Alyawarr FC).  
I do not intend to examine this ‘threshold question’ separately in respect to each native title right and interest claimed. Having examined each of the native title rights and interests set out in the application at Attachment E, it is my view that, prima facie, each is a right or interest ‘in relation to land or waters.’ 
As to the other requirements for native title rights and interests, this was put succinctly by the majority in Yorta Yorta (referring primarily to s. 223(1)(c) but alluding to the requirements of s. 223(1)(a)): 
Native title owes its existence and incidents to traditional laws and customs [emphasis added], not the common law. The role of the common law is limited to the recognition and protection of native title. That recognition and protection depends on native title not having been extinguished [emphasis added]and its not having incidents that are repugnant to the common laws... requires examination of whether the common law is inconsistent with the continued existence of the rights and interests that owe their origin to Aboriginal law or custom—at [110].  
The application area has been described so as to exclude any areas in which native title rights and interests have been extinguished: see Attachment B1(6) of the application. 
I now consider each of the rights and interests as claimed in Attachment E of the application. I note that in some instances I have grouped certain rights and interests together. Further, my reasons at s. 190B(6) should be considered in conjunction, and in addition to, my reasons and the material outlined at s. 190B(5).  
Exclusive rights and interests
1. Over areas where a claim to exclusive possession can be recognised (such as areas where there has been no prior extinguishment of native title or where section 238 and /or ss.47, 47A and 47B apply) members of the native title claim group claim the right to possess, occupy, use and enjoy the lands and waters of the application area as against the whole world, pursuant to their traditional laws and customs. 
The relevant law
In Western Australia v Ward [2002] HCA 28 (Ward HC), the majority considered that ‘[t]he expression “possession, occupation, use and enjoyment … to the exclusion of all others” is a composite expression directed to describing a particular measure of control over access to land’ [emphasis added]. Further, that expression (as an aggregate) conveys ‘the assertion of rights of control over the land’, which necessarily flow ‘from that aspect of the relationship with land which is encapsulated in the assertion of a right to speak for country’—at [89] and [93]. 
In Griffiths v Northern Territory of Australia [2007] FCAFC 178 (Griffiths FC), the Full Court explored the relevant requirements to proving that such exclusive rights are vested in a native title claim group, stating: 
[T]he question whether the native title right of a given native title claim group include the right to exclude others from the land the subject of their application does not depend upon any formal classification of such rights as usfructuary or proprietary. It depends rather on the consideration of what the evidence discloses about their content under traditional law and custom [emphasis added]—at [71]. 
Further, the Full Court in Griffiths FC was of the view that control of access to country could flow from ‘spiritual necessity’, due to the harm that would be inflicted upon those that entered country unauthorised—at [127]. 
My decision
In my view the claimants’ factual basis material elicits some uncertainty as to the existence of this exclusive right arising under the traditional laws and customs of the native title claim group.
The historical record outlined in Attachment F clearly provides a factual basis going to the presence of the Nauo people in and around the application area at or about the time of contact. It also provides reference to, and details of, a system of law and custom held by those people. However, the extracts of the historical record also contain various references to other groups, noting that ‘sites and ceremonies were shared, and that Aboriginal group ‘boundaries’ were flexible.’ The historical record clearly points to the presence of other groups within the vicinity of the application area, and it is unclear whether these groups also shared country within the application area.  
In additional material provided to the Registrar in a document titled ‘Table A’, it is asserted that the native title claim group has the right to control access to the land and waters in the application area, referring to the historical record, primarily consisting of the following reference: 
Schurmann (1879:234) wrote that Nauo women and children were not permitted to visit locations such as ritual grounds, or observe certain rituals, and that “impertinent curiosity...[was] punishable with death, according to their ancient custom. 
Of itself, it is my view that this reference to the historical record does not essentially elicit the requisite element of control over access, arising under the traditional laws and customs, that goes to supporting the group’s right to exclude all others from the application area.     
Table A also points to information in contemporary accounts going to the existence of this right pursuant to the traditional laws and customs of the Nauo people. These contemporary accounts are contained within the affidavits of current claimants, and include the following references: 
Under Nauo traditional law entitlement to Nauo country comes from being a descendant of Henry Weetra. It was, and remains, the case that other Aboriginal groups will seek permission from senior Nauo people if they want to come on to Nauo country, ie to conduct ceremonies, take food or be involved in meetings. 
I am sometimes asked about sites on the land and whether people can visit those sites. If I do not know I consult my cousin [name deleted] or other old people or refer the enquiries to [name deleted] or an old person. In this way, I can control people’s access to and use of the land, and at the same time, continue to learn about the land. 
 Nauo traditional law and custom allows me to prevent access to Nauo country in certain circumstances. Because I have the knowledge I am consulted by other people about going on to and using the land. I have the authority to prevent people from going to certain places and on occasions I have used that authority. Those people always accept what they have been told about access to the land. 
As stated above, in applying the test at s. 190B(6) I understand that it imposes a more onerous burden, involving some ‘measure’ and ‘weighing’ of the factual basis material—Doepel at [126], [127] and [132]. Thus, in assessing the claimant’s factual basis material I have considered that there is some conflict and uncertainty around this claimed right to exclusive possession. 
That said, I note that the account of current claimants reflects the understanding and belief that this native title right is possessed pursuant to the traditional laws and customs of the Nauo people. Indeed, each of the affidavits, in various ways, refers to the existence of this right. Presumably, this understanding was formed on the basis of the teachings of the group’s predecessors, so it may be inferred that it has some historical basis. Even given that there is ambiguity in the historical record set out in Attachment F, there is no reason why I should not accept that the version from the current claimants is an accurate account of the group’s traditional laws and customs.  
Having reviewed the claimants’ factual basis material in its entirety as it pertains to the existence of traditional laws and customs of the claim group and the right of Nauo people to exercise some measure of control over the application area pursuant to those laws and customs, it is my view that this claimed right is ‘arguable’ —Doepel at [135].  
I consider that this right can, prima facie, be established.
Outcome: prima facie established. 
2. Over areas where a claim to exclusive possession cannot be recognised, the nature and extent of the native title rights and interests claimed in relation to the application area are the non-exclusive rights to use and enjoy the land and waters in accordance with traditional laws and customs being:
(a) the right to access and move about the application area; 
(f) the right to live, to camp and to erect shelters on the application area;  
It is my view that the existence of these rights, pursuant to the traditional laws and customs of the claim group, are well documented within the claimants’ factual basis material. 
That material refers to the historical record of the Nauo people’s association with the application area, inviting the inference that the association dates back to sovereignty, including:
Schurmann (1879) has described how the Nauo accessed and moved about the application area undertaking a whole range of activities...Frank Kent also informed Tindale that Nauo people in the Coffin Bay region did likewise, several decades after Schurmann’s observations, noting in particular activities such as hunting, foraging and camping (1928:114).
Schurmann (1879:222) observed the practice of Aboriginal people camping from time to time, and its seasonal nature, in particular, the tendency to travel and change camping sites more frequently in the summer months. Frank Kent informed Tindale that as well as Nauo people having a significant camping place on the Western Horse Peninsula, there were also at least three other camps in the general region (1928:113). Camping of Nauo land remains ongoing and is crucial for Nauo people to maintain the integrity of their country and specific sites and locations, as well as for the conduct of other significant aspects of traditional law and culture such as hunting, foraging and education and socialisation. 
The factual basis material also contains information in relation to the traditional laws and customs as they relate to access and occupation of the application area. Recognition of common ancestors with a connection to the application area being primary amongst those laws, which informs the basis of group membership and the rights of access and occupation. 
Contemporary accounts from claimants set out their continuing understanding of the laws and customs relating to access and occupation of the claim area, primarily descent from the named ancestors. For instance, each claimant in their affidavit asserts their Nauo identity as informed by their descent from the traditional owners of the application area. This also informs their claim to the native title rights and interests relating to access and occupation of the application area, which they continue to exercise in accordance with the relevant laws and customs. 
Outcome: prima facie established.    
(b) the right to hunt on the application area;
(c) the right to fish on the application area; 
(d) the right to gather and use the natural resources of the application area such as food, medicinal plants, wild tobacco, timber, stone and resin;
(e) the right to use the natural water resources on the application area;
(h) the right to share or exchange subsistence resources or other traditional resources obtained from the application area;
There are various references in the factual basis material of historical and contemporary accounts of Nauo people hunting, fishing and gathering the natural resources of the claim area for a range of uses in accordance with the traditional laws and customs of the claim group. 
For instance, there are references within the factual basis as to the traditional hunting practices of the Nauo people that have been recorded in historical accounts and how those practices continue today in accordance with the relevant laws and customs, including: 
In his affidavit (para 9) [current claimant] also noted this gender based activity, and how certain parts of the meat were given to particular individuals (paras 18-2)), which is consistent with Schurmann’s observations [from 1879]. This highlights the current observance and practice of rules that are part of Nauo traditional law and custom, in particular the respect for authority and senior persons, and sharing. 
As another example, the factual basis material sets out the traditional laws giving rise to the right to fish in the application area as well as the customs pertaining to hunting. It is asserted that this right is bestowed upon members who are recognised as descendants of the identified ancestors, and furthermore that its exercise continues in accordance with observed customary practices of the claim group: 
Schurmann (1879:219,221-222) described how the Nauo procured fish in the application area. He described how the Nauo used spears, branches and fire lights to catch fish as they “range[d] up and down the sea-coast” in pursuit, and that “on favourable fishing grounds, they will sometimes protract their stay in one camp from ten days to a fortnight”...Fishing practices still continue today, as noted in the affidavit of [current claimant] (paras 2,10,14) where she described that “the seaside was where the majority of the food sources were”. She also described how her father and other men “ceremonially smoked themselves so that the fish would not smell them,” and how they used tree branches to catch fish. 
The use of fish traps throughout coastal Eyre Peninsula, including the Nauo application area has been well documented. George Angas (1847:112) initially observed the use of fish traps and wrote that “at the mouths of creeks, weirs of brushwood are constructed to catch the fish left by the receding tide”...Noting the location of fish traps at the Port Lincon [sic] marina, Dutton Bay and in the Elliston region, [current claimant] described how his father taught him to build and maintain the fish traps, and how he has taught his children and grandchildren these skills.  
I have had regard to this kind of information within the factual basis material in forming my view in relation to the above claimed native title rights and interests. 
Outcome: prima facie established. 
(g) the right to cook on the application area and to light fires for all purposes other than the clearance of vegetation;
This claimed right is asserted to be pursuant to the traditional laws and customs of the claim group. The claimants’ factual basis material sets out that: 
Cooking and the use of fire on the application area was observed by Schurmann (1879:217-220) who documented how after they were gathered, a number of plant food sources were roasted in the hot ashes of fires, and that meat and fish were also cooked. These practices continue today, as noted in the affidavit of [current claimant] (paras 19-20) who described the protocols involved in cutting up and cooking wombat meat.  
The information in Attachment F of the application suggests that this right continues to be carried out in accordance with traditional customs of the claim group as they pertain to the food preparation and consumption. In that regard, the information provides a factual basis that goes to the existence of this right pursuant to the traditional laws and customs of the group. 
Outcome: prima facie established. 
(i) the right to engage and participate in cultural activities and conduct traditional pursuits on the application area;
The Nauo peoples’ participation in ritual and ceremonial observances relating to the land and waters covered by the application area is set out in the factual basis material. Table A sets out that early ethnographic sources point to the importance of ritual and ceremonial activities for the Nauo people (including references within the works of Schurmann, 1879 and Angas, 1847). Further, it is asserted that contemporary research by prominent experts has highlighted the importance of Nauo mythological narratives. 
Some information in relation to this claimed right is set out in the affidavits of current claimants, who assert that such activities are still carried out in accordance with the traditional laws and customs as taught to them by their predecessors. In his affidavit, [current claimant 4] states that: 
My great grandfather Henry Weetra was an initiated Nauo man who went through the law near Weetra station and was also a traditional doctor and healer. 
Nauo law is based around the stories, songs and dances passed on by our creative ancestors. I know of a number of important stories that exist on Nauo country about the mythological ancestors who created important features in our landscape. 
Whilst the information in relation to this right is relatively scant, it is in my view sufficient for the purpose of making an arguable claim to its existence arising under the traditional laws and customs of the claim group.
Outcome: prima facie established.  
(j) the right to teach on the application area the physical and spiritual attributes of locations and sites within the application area;
Of this claimed right, Attachment F states that: 
Members of the Nauo Native Title claim group continue the traditional ways of education and socialisation in many aspects of their culture, through generational transmission via oral and practical instruction...Claimants who are knowledgeable about the land, its resources and meanings have had this knowledge passed down to them by elders. This knowledge is fundamental to cultural traditions and contemporary identity. 
The affidavits of current claimants also contain numerous accounts of the teachings and transmission of knowledge around laws and customs from their immediate predecessors. In her affidavit, [current claimant 1] states that: 
I have taught my children to live off the land, just as I was shown when I was with my father. 
With the knowledge that I have learnt from my family, I have passed onto to my children and likewise my grand children the importance of looking after country and the importance of not going to certain areas and the reasons why they cannot visit those areas. I don’t want my children to lose their identity. I want them to know who they are and who their relatives were and where their traditions come from. I want them to know and practice the traditions we strongly keep and uphold. 
My grandfather and my father instilled the practice of deference and respect to elders, and their authority, and I have done this with my children and grandchildren. 
The claimants’ factual basis material elicits the importance of this right in relation to the maintenance and continued observance of the claim group’s traditional laws and customs. The affidavit material demonstrates that current claimant’s retain their knowledge of the laws and customs as taught to them by their predecessors. For instance, [current claimant 1] speaks directly to the teachings of her grandfather, Henry Weetra (a named apical ancestor). 
Outcome: prima facie established. 
(k) the right to maintain and protect sites and places of significance under traditional laws and customs of the application area;
The claimants’ factual basis material speaks to the role of Nauo people as custodians of the land and waters covered by the application. Pursuant to the traditional laws and customs, it is asserted that this role vests primarily in elders and senior members of the claim group. It is clear from the accounts of current claimants that they continue to see themselves in the role of custodians with the right, and indeed the obligation, to maintain and protect significant sites and places. Some of these significant places are identified within the factual basis material. The modern manifestation of this right takes the form of claimants ensuring that protocols and procedures are adhered to in relation to visits to sites. It also entails their active participation in conservation and protection, such as their involvement in heritage surveys. 
As with many of the claimed rights, the material within the application in relation to this claimed right is such that it calls for the making of inferences in relation to the traditional content of the laws and customs that give rise to the claimed right. There is, in my view, within the material a clear claim that this right arises under the traditional laws and customs of the group accompanied by current claimant accounts that assert that the laws and customs informing this right have been handed down through the generations. In my view information of this kind prima facie supports the existence of this right arising pursuant to the traditional laws and customs of the Nauo people.     
Outcome: prima facie established. 
(l) the right to maintain, conserve and/or protect significant artworks, song cycles, narratives, beliefs or practices by preventing [by all lawful means] any activity occurring on the application area which may desecrate, damage, disturb or interfere with any such artwork, song cycles, narrative, belief or practice. 
Although there is information within the factual basis material that goes to supporting this claimed right, it is my view that there is some difficulty in relation to the expression and extent of this claimed right as being in relation to land and waters and as being a right claimed over areas where exclusive possession cannot be recognised, i.e. a non-exclusive right. 
I indicated above in my reasons that I had considered whether each claimed right or interest was in relation to land and waters. My view is that that they all are. However, some elucidation on this point is necessary in relation to this claimed right. 
The use of the formulation ‘in relation to land and waters’ (or, ‘in relation to the application area’) does not ensure that a right is in fact in relation to ‘land and waters’ within the meaning of s. 223 (Neowarra v State of Western Australia [2003] FCA 1402 (Neowarra) at [488]), which is why ‘the true character of the right’ must be ascertained (Neowarra at [488]).  
Once that ‘true character’ is ascertained, it must be capable of satisfying all elements of s. 223(1), which provides the definition of native title/native title rights and interests.  
In Ward HC, the High Court determined that a claimed right to ‘maintain, protect and prevent the misuse of cultural knowledge of the common law holders’ [emphasis added] was not a ‘native title right and interest’ (at [59] to [61]) and provided the following reasons: 
The first difficulty...is the imprecision of the term ‘cultural knowledge’ and the apparent lack of any specific content given it by factual findings made at trial. In submissions, reference was made to such matters as the inappropriate viewing, hearing or reproduction of secret ceremonies, artworks, song cycles and sacred narratives. 

To some degree...respecting access to sites where artwork on rock are located or ceremonies are performed, the traditional laws and customs which are manifested at these sites answer the requirement of connection with the land found in par (b) of the definition in s. 223(1) of the NTA. However, it is apparent that what is asserted...[the right to maintain, protect and prevent the misuse of cultural knowledge of the common law holders]...goes beyond that to something approaching an incorporeal right akin to a new species of intellectual property to be recognised by the common law under par (c) of s. 223(1). The ‘recognition’ of this right would extend beyond denial or control of access to land held under native title. It would, so it appears, involve, for example, the restraint of visual or auditory reproductions of what was found there or took place, there, or elsewhere. It is here that the second and fatal difficulty appears – at [59].

The scope of the right for which recognition by the common law is sought here goes beyond the content of the definition in s. 223(1) – at [60]. 
The claim, in this instance, to the ‘right to maintain, conserve and/or protect significant artworks, song cycles, narratives, beliefs or practices’ may raise similar concerns as those elucidated by the High Court in Ward. That is, whether aspects of this claimed right are akin to a species of intellectual property law or the protection of something that is not tangible in relation to the physical elements of the land and waters in the application area. This, in my view, may reasonably be one assumption in relation to the maintenance, conservation and protection of narratives, beliefs and practice from damage or interference.     
However, as pointed out in Ward HC (the inquiry into the nature of the rights and interests and whether they are ‘in relation to land and waters’ is one of fact. In my view, this supports the approach that while some rights and interests may be expressed similarly, it is the factual inquiry which is revealing of the true nature of the right or interest and not the expression per se— at [18]. 
Having considered the expression of this right in its entirety, it is my view that it is concerned primarily with the prevention of activities occurring on the application area that may damage, disturb or desecrate physical aspects of the land or waters such that the destruction or damage may interfere with these important aspects of the Nauo people’s traditional way of life. In that regard, I consider that this is a right in relation to land and waters. 
Notwithstanding that view, there are other issues that arise in relation to this claimed right. In my view, this right as expressed contemplates the ability to control any activity by others (which may be asserted by the claimants to result in desecration, damage, disturbance or interference with any such artwork, song cycles, narrative, belief or practice) occurring on the application area 
The right to ‘prevent any activity’ occurring on land or waters, expressed as a non-exclusive right, is problematic. This is highlighted in the following passage of the High Court’s decision in Ward, where it observed that:
It is necessary to recognise that the holder of a right, as against the whole world, to possession of land, may control access to it by others and, in general, decide how the land will be used. But without a right of possession of that kind, it may greatly be doubted that there is any right to control access to land or make binding decisions about the use to which it is put. To use those expressions in such a case is apt to mislead—at [52]. 
Given that this right to prevent any activity, as expressed, would seem to educe the notion of control and prevention of activities by others on the application area, and thus be unconfined in its exercise and possession, then I consider that Ward is applicable. In my view, to use the expression that the native title claimants have the right to prevent any activity by others on the application area [but without a right of possession as against the whole world] ‘is apt to mislead’—Ward HC at [52]. This claimed right as expressed does not relate only to the native title claimants’ right to use and enjoy the land and waters (as subparagraph (2) would suggest). Rather, it also seeks to restrict the rights of others in relation to the application area, and in my view that right does not flow to the native title claimants’ as a non-exclusive right.  
I am not satisfied, that a right to prevent any activity by others in relation to the application area can be prima facie established where a right to exclusively possess, occupy, use and enjoy is not claimed. 
Outcome: not established.     
(m) the right to be accompanied on the application area by those people who, though, not members of the native title claim group are:
	(i) spouses of members of the native title claim group; 
	(ii) people required by traditional law and custom for the performance of ceremonies or cultural
	activities on the application area;
(iii) people required by members of the native title claim group to assist in, observe, or record
traditional activities on the application area.      
Although some of the factual basis material suggests that this right is concerned with controlling access, I understand it as being more confined and relating to the right to be accompanied on to the application area by various others. There is information within the factual basis material which goes to supporting that the Nauo people, in accordance with their traditional laws and customs, may be accompanied by certain persons on the application area, including the following: 
 Schurmann (1879:243) wrote how ceremonial activities – which he described as ‘amusements’ were conducted when “two different tribes meet” in the application area, and how they lasted for many hours. Schurmann (1987:174) observed in January 1845 how intergroup ceremonies, including initiations involving two different groups, the Barngarla and the Nauo lasted over 12 days.  These observations show the amicable relationship between the Nauo and neighbouring groups. 
Shared ceremonies were also noted in the Lake Wangary region of the claim area in the 1870s, involving the Nauo, the Barngarla and the Wirangu (Tindale, cited in Hercus and Simpson 2001: 265). [current claimant 2] (affidavit paras. 8-9) has described how she is accompanied by Antakarija women from northern South Australia in shared ceremonies on Nauo country. These women are required by traditional law and custom to participate in ceremonial activities, and that ritual responsibilities for major mythologies are shared by multiple groups of Aboriginal people.  
Outcome: prima facie established. 
Subsection 190B(7)
Traditional physical connection
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 be expected to currently 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.
The application satisfies the condition of s. 190B(7).
This section requires that the evidentiary material be capable of satisfying the Registrar of a particular fact(s), specifically that at least one member of the claim group ‘has or had a traditional physical connection’ with any part of the claim area. While the focus is necessarily confined, as it is not commensurate with that of the Court in making a determination, it ‘is upon the relationship of at least one member of the native title claim group with some part of the claim area’—Doepel at [18]. 
I also hold the understanding that the term ‘traditional,’ as used in this context, should be interpreted in accordance with the approach taken in Yorta Yorta—Gudjala [2007] at [89]. In interpreting connection in the ‘traditional’ sense as required by s. 223 of the Act, the members of the joint judgment in Yorta Yorta felt that: 
[T]he connection which the peoples concerned have with the land or waters must be shown to be a connection by their traditional laws and customs … ”traditional” in this context must be understood to refer to the body of law and customs acknowledged and observed by the ancestors of the claimants at the time of sovereignty—at [86].   
The applicant provided six (6) affidavits from current claimants. I am satisfied that each of these persons has a traditional physical connection with the land and waters within the application area. For instance, based upon the information contained in the affidavit of [current claimant 1] (relevant parts extracted in my reasons above), I am satisfied that she is a member of the native title claim group and that she has a traditional physical connection with the application area.  
Subsection 190B(8)
No failure to comply with s. 61A
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 provides:
(1)	A native title determination application must not be made in relation to an area for which there is an approved determination of native title.
(2)	If :
(a)	a previous exclusive possession act (see s. 23B) was done, and
(b)	either:
(i)	the act was an act attributable to the Commonwealth, or
(ii)	the act was attributable to a state or territory and a law of the state or territory has made provisions as mentioned in s. 23E in relation to the act;
a claimant application must not be made that covers any of the area.
(3)	If:
(a)	a previous non-exclusive possession act (see s. 23F) was done, and
(b)	either:
(i)	the act was an act attributable to the Commonwealth, or
(ii)	the act was attributable to a state or territory and a law of the state or territory has made provisions as mentioned in s. 23I in relation to the act;
a claimant application must not be made in which any of the native title rights and interests confer possession, occupation, use and enjoyment of any of the area to the exclusion of all others.
(4)	However, subsection(2) and (3) does not apply if:
(a)	the only previous non-exclusive possession act was one whose extinguishment of native title rights and interests would be required by section 47, 47A or 47B to be disregarded were the application to be made, and
(b)	the application states that ss. 47, 47A or 47, as the case may be, applies to it

The application satisfies the condition of s. 190B(8). I explain this in the reasons that follow by looking at each part of s. 61A against what is contained in the application and accompanying documents and in any other information before me as to whether the application should not have been made.
Reasons for s. 61A(1)
Section 61A(1) provides that a  native title determination application must not be made in relation to an area for which there is an approved determination of native title. 
In my view the application does not offend the provisions of s. 61A(1). 
The geospatial assessment confirms that no determinations of native title fall within the external boundary of this amended application. I agree with this assessment. 
I have also undertaken a more recent search of the Tribunal’s mapping database to confirm the accuracy of this information—see Overlap Analysis 28 May 2012. 
Reasons for s. 61A(2)
Section 61A(2) provides that a claimant application must not be made over areas covered by a previous exclusive possession act, unless the circumstances described in subparagraph (4) apply.
In my view the application does not offend the provisions of s. 61A(2). 
Attachment B1 of the application excludes areas covered by a previous exclusive possession act except if the circumstances described in subparagraph (4) apply. 
Reasons for s. 61A(3)
Section 61A(3) provides that an application must not claim native title rights and interests that confer possession, occupation, use and enjoyment to the exclusion of all others in an area where a previous non-exclusive possession act was done, , unless the circumstances described in s. 61A(4) apply. 
In my view, the application does not offend the provisions of s. 61A(3).
Attachment B1 of the application includes the proviso that exclusive possession is not claimed in relation to areas where a previous non-exclusive possession act was done.
Subsection 190B(9)
No extinguishment etc. of claimed native title
The application and accompanying documents must not disclose, and the Registrar/delegate must not otherwise be aware, that:
(a)	a claim is being made to the ownership of minerals, petroleum or gas wholly owned by the Crown in the right of the Commonwealth, a state or territory, or
(b)	the native title rights and interests claimed purport to exclude all other rights and interests in relation to offshore waters in the whole or part of any offshore place covered by the application, or
(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 ss. 47, 47A or 47B.
The application satisfies the condition of s. 190B(9), because it meets all of the three sub-conditions, as set out in the reasons below.
Reasons for s. 190B(9)(a):
The application satisfies the sub-condition of s. 190B(9)(a).
Schedule Q of the application states that the native title claim group does not claim ownership of minerals, petroleum or gas wholly owned by the Crown. 
Reasons for s. 190B(9)(b)
The application satisfies the sub-condition of s. 190B(9)(b).
Schedule P of the application states that the native title claim group does not claim exclusive possession over all or part of waters in an offshore place within the application area. 
Result for s. 190B(9)(c)
The application satisfies the sub-condition of s. 190B(9)(c).
Schedule B of the application provides for a number of categories of areas of land and waters to be excluded from the application area, namely those where native title rights and interests have been extinguished.
The application does not disclose, and I am not otherwise aware, that the native title rights and interests claimed have otherwise been extinguished.  

[End of reasons]