Registration Decision
Application name	Aaron Charles Paterson & Anor on behalf of the Yandruwandha Yawarrawarrka People and State of Queensland (Yandruwandha Yawarrawarrka)	
Name of applicant	Mr Aaron Charles Paterson, Mr Robert Darren Singleton	
Federal Court of Australia No.	QUD133/2021	
NNTT No.	QC2021/002	
Date of Decision	11 June 2021	

Claim not accepted for registration
I have decided the claim in the Yandruwandha Yawarrawarrka application does not satisfy all of the conditions in ss 190B–190C of the Native Title Act 1993 (Cth). Therefore the claim must not be accepted for registration. 
For the purposes of s 190D(3), my opinion is that the claim satisfies all the conditions in s 190B. However it does not satisfy s 190C(3).

___________________________________
Katy Woods
Delegate of the Native Title Registrar pursuant to ss 190–190D of the Native Title Act under an instrument of delegation dated 19 May 2021 and made pursuant to s 99 of the Native Title Act.
Reasons for Decision
Cases cited
Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625 (Aplin) 
Attorney-General of the Northern Territory v Ward [2003] FCAFC 283 (Ward FC No 2)
Corunna v Native Title Registrar [2013] FCA 372 (Corunna)
Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177 (Warrie)
Gudjala People #2 v Native Title Registrar [2007] FCA 1167 (Gudjala 2007)
Gudjala People #2 v Native Title Registrar [2009] FCA 1572 (Gudjala 2009)
Harrington-Smith on behalf of the Wongatha People v Western Australia (No 5) [2003] FCA 218 (Harrington-Smith No 5)
Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) [2007] FCA 31 (Harrington-Smith No 9)
Kanak v National Native Title Tribunal [1995] FCA 1624 (Kanak)
Martin v Native Title Registrar [2001] FCA 16 (Martin)
Northern Land Council v Quall [2020] HCA 33 (Quall HCA)
Yorta Yorta v Victoria [2002] HCA 58 (Yorta Yorta)
McLennan v State of Queensland [2019] FCA 1969 (McLennan)
Nicholls v State of South Australia [2015] FCA 1407 (Yandruwandha/Yawarrawarrka)
Northern Territory of Australia v Doepel [2003] FCA 1384 (Doepel)
Sampi on behalf of the Bardi and Jawi People v State of Western Australia [2010] FCAFC 26 (Sampi FC)
Strickland v Native Title Registrar [1999] FCA 1530 (Strickland) 
State of Western Australia v Strickland [2000] FCA 652 (Strickland FC)
Wakaman People # 2 v Native Title Registrar and Authorised Delegate [2006] FCA 1198 (Wakaman)
Western Australia and Northern Territory v Lane [1995] FCA 1484 (Lane)
Western Australia v Native Title Registrar [1999] FCA 1591 (WA v NTR)
Background
[1]	This application is made on behalf of the Yandruwandha Yawarrawarrka native title claim group (claim group). It covers an area of approximately 6,367 square kilometres near the south western corner of Queensland, adjacent to the border with South Australia (application area). Immediately across the border, the same claim group had their native title determined over an area of more than 40,000 square kilometres in 2015. 
[2]	This application was filed on 28 April 2021 in the Federal Court of Australia (Court) and a copy was given to the Native Title Registrar (Registrar) the same day, pursuant to s 63. This referral triggered the Registrar’s duty to consider the claim in the application under s 190A(1). Pursuant to s 190A(6), if the claim meets all the conditions in ss 190B–190C (registration test), it must be accepted for registration and entered onto the Register of Native Title Claims (Register).
[3]	For the reasons below, I consider the claim in the application does not meet all the conditions of the registration test. Attachment A contains a summary of my decision.
Procedural fairness
[4]	On 30 April 2021, a senior officer of the National Native Title Tribunal (Tribunal) wrote to the representative of the relevant Minister of the Queensland government (State), advising that a delegate of the Registrar would be considering the information in the application and should the State wish to supply any information or make submissions, it should do so by 7 May 2021.
[5]	Also on 30 April 2021, the senior officer wrote to the applicant’s representative to advise that any additional information or submissions the applicant wished the delegate to consider should be provided by 7 May 2021. 
[6]	No information or submissions were received from the State or the applicant and so this concluded the procedural fairness process.
Information considered
[7]	In accordance with s 190A(3)(a), I have considered the information in the application. There is no information before me from searches of State, Territory or Commonwealth interest registers obtained by the Registrar under s 190A(3)(b). There is no information before me from the State which I must consider in accordance with s 190A(3)(c). Section 190A(3) also provides that the Registrar may have regard to such other information considered appropriate. Pursuant to that provision, I have considered:
(a)	information in the geospatial assessment and overlap analysis of the application area prepared by the Tribunal’s Geospatial Services dated 13 May 2021 (geospatial report);
(b)	information in the Tribunal’s geospatial database; and
(c)	information on the Register.
Section 190C: conditions about procedures and other matters
Information etc. required by ss 61–2 – s 190C(2): condition met	
What is required to meet s 190C(2)?
[8]	To meet s 190C(2), the Registrar must be satisfied the application contains all of the prescribed details and other information, and is accompanied by any affidavit or other document, required by ss 61–2. I am not required to undertake a merit assessment of the material at this condition. I have not addressed s 61(5) as I consider the matters covered by that condition are matters for the Court. 
Consideration
[9]	I consider the application contains all the details specified in s 61:
Section	Details	Form 1	Result	
s 61(1)	Native title claim group has authorised the applicant	Part A(2), Schedule A, 
s 62 affidavits 	Met 	
s 61(3)	Name and address for service 	Part B	Met	
s 61(4)	Native title claim group named/described 	Schedule A	Met	
[10]	I consider the application contains all the information specified in s 62:
Section	Details	Form 1	Result	
s 62(1)(a)	Affidavits in prescribed form	Section 62 affidavits	Met	
s 62(1)(d)	Agreements under s 47C(1)(b) or s 47C(5)	Schedule L(2)	Met	
s 62(2)(a)	Information about the boundaries of the area	Schedule B 	Met	
s 62(2)(b)	Map of external boundaries of the area	Attachment C	Met	
s 62(2)(c)	Searches	Schedule D	Met 	
s 62(2)(d)	Description of native title rights and interests	Schedule E	Met	
s 62(2)(e)	Description of factual basis	Schedule F	Met	
s 62(2)(f)	Activities	Schedule G	Met	
s 62(2)(g)	Other applications	Schedule H	Met	
S 62(2)(ga)	Notices under s 24MD(6B)(c)	Schedule HA	Met	
s 62(2)(h)	Notices under s 29	Schedule I	Met	
Conclusion
[11]	As the application contains all of the prescribed details and other information, as required by ss 61–2, I am satisfied s 190C(2) is met.
No previous overlapping claim group – s 190C(3): condition not met
What is required to meet s 190C(3)?
[12]	To meet s 190C(3), the Registrar must be satisfied that no person included in the claim group for the current application was a member of a native title claim group for any previous application. To be a ‘previous application’:
(a)	the application must overlap the current application in whole or part;
(b)	there must be an entry for the claim in the previous application on the Register when the current application was made; and
(c)	the entry must have been made or not removed as a result of the previous application being considered for registration under s 190A.
Consideration
[13]	The geospatial report states and my own searches of the Tribunal’s geospatial database confirm the application area overlaps the application QUD851/2018 Wongkumara People (QC2008/003) (Wongkumara). This means s 190C(3)(a) is met.
[14]	The Register shows that Wongkumara was entered onto the Register on 12 April 2008, and has not been removed. It was therefore on the Register when this claim was made in the Federal Court on 28 April 2021. This means s 190C(3)(b) is met.
[15]	According to the Register, the entry for Wongkumara was made as a result of the claim in that application being considered for registration under s 190A. This means s 190C(3)(c) is met and Wongkumara is therefore a ‘previous application’ for the purposes of this condition. Accordingly I must consider whether there are claimants in common between the Wongkumara native title claim group and the claim group described in this application.
[16]	Schedule O states that the applicant is aware that some members of the claim group are members of the native title claim group for the Wongkumara application. The s 62 affidavits from the applicant members depose that they believe all the statements in the application are true. I have also compared the claim group described in Schedule A with the description of the Wongkumara native title claim group and there appear to be apical ancestors common to both applications. For example, the Wongkumara claim group description includes Tommy, the father of Nellie Flash. The claim group description in this application includes ‘Flash Tommy’. Both claim group descriptions also include another ancestor named Nellie (not Nellie Flash), Jack and Maggie.
[17]	As the application states there are members of the claim group who are also members of the Wongkumara claim group, and the two claim groups appear to have common ancestors, it follows that I cannot be satisfied that there are no common claimants between the two groups.
Conclusion
[18]	I am not satisfied that no person included in the claim group was a member of a native title claim group for any previous application, and so s 190C(3) is not met. 
Identity of claimed native title holders – s 190C(4): condition met
What is required to meet s 190C(4)?
[19]	To meet s 190C(4), the Registrar must be satisfied that either: 
(a)	the application has been certified under Part 11 by each representative body that could certify the application in performing its functions under that Part; or 
(b)	the applicant is a member of the 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 claim group.
[20]	Schedule R refers to Attachment R, which contains a copy of a certificate. I therefore understand I must assess the application against the requirements of s 190C(4)(a), and in particular that:
(a)	the certificate identifies the relevant representative body;
(b)	the representative body has the power under Part 11 to issue the certification; and
(c)	the certificate meets the requirements of s 203BE(4).
Consideration
Is the relevant representative body identified?
[21]	Queensland South Native Title Services Limited (QSNTS) has provided the certificate, which is dated 22 April 2021 and signed by the Chief Executive Officer. The geospatial report states, and I have verified using the Tribunal’s geospatial database, that QSNTS is the only representative body for the whole of the application area. I am therefore satisfied the certificate identifies the relevant representative body. 
Does the representative body have the power to issue the certification?
[22]	As a recognised representative body, the QSNTS can perform all the functions listed in Part 11 of the Native Title Act, including the certification functions in s 203BE. I am satisfied QSNTS has the power under Part 11 to issue the certification. The certificate states that the certification function has been delegated to the Chief Executive Officer and that delegation has not been revoked. I understand there is no impediment to the delegation of the certification function to particular individuals, acting either as a delegate or agent of the representative body.
Does the certificate meet the requirements of s 203BE(4)?
[23]	I have considered each of the requirements of s 203BE(4) in turn below.
Section 203BE(4)(a) – statements 
[24]	Section 203BE(4)(a) requires a representative body to state that it is of the opinion that the requirements of ss 203BE(2)(a)–(b) have been met. Section 203BE(2)(a)–(b) prohibits a representative body from certifying an application unless it is of the opinion that:
(a)	all persons in the claim group have authorised the applicant to make the application; and
(b)	all reasonable efforts have been made to ensure that the application describes or otherwise identifies all the other persons in the claim group.
[25]	As the certificate contains these required statements in paragraph 1, I am satisfied s 203BE(4)(a) is met.
Section 203BE(4)(b) – reasons 
[26]	Section 203BE(4)(b) requires a representative body to briefly set out its reasons for being of the opinion that the requirements of ss 203BE(2)(a)–(b) have been met. Paragraph 2 of the certificate sets out the reasons for QSNTS’s opinion that ss 203BE(2)(a)–(b) are met, which includes the following information:
(a)	An authorisation meeting was held on 30 November 2019 in Brisbane (authorisation meeting);
(b)	Notice of the authorisation meeting was published in the Koori Mail and four regional newspapers;
(c)	The authorisation meeting was also advertised on two radio stations which broadcast in the region of the application area; 
(d)	Personal notice of the authorisation meeting was given to the members of the Yandruwandha Yawarrawarrka Traditional Land Owners Aboriginal Corporation RNTBC by mail and email, to those members for whom current addresses were known; and
(e)	The authorisation meeting was attended by 36 people and the applicant was authorised using an agreed to and adopted decision making process.
[27]	As the certificate sets out the reasons for QSNTS’s opinion that ss 203BE(2)(a)–(b) are met, I am satisfied s 203BE(4)(b) is met.
Section 203BE(4)(c) – overlapping applications
[28]	Section 203BE(4)(c) requires a representative body to set out, where applicable, what it has done to meet the requirements of s 203BE(3). Section 203BE(3) states that if the application area is wholly or partly covered by other applications, including proposed applications, of which the representative body is aware, the representative body must make all reasonable efforts to:
(a)	achieve agreement between the persons in respect of whom the applications are made; and
(b)	minimise the number of applications covering the land or waters.
[29]	Section 203BE(3) also provides that a failure to comply with this provision does not invalidate the certification. The certificate does not provide any information about efforts undertaken with respect to the Wongkumara overlap, however I consider this omission does not invalidate the certification.
Conclusion
[30]	As the certificate identifies the relevant representative body, the representative body has the power under Part 11 to issue the certification, and the certificate meets the mandatory requirements of s 203BE(4), the requirements of s 190C(4)(a) are satisfied. This means s 190C(4) is met.
Section 190B: merit conditions
Identification of area subject to native title – s 190B(2) condition met
What is required to meet s 190B(2)?
[31]	To meet s 190B(2), the Registrar must be satisfied the information and map contained in the application are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters.
[32]	I understand the questions for this condition are whether: 
(a)	the information and map provide certainty about the external boundary of the application area; and 
(b)	the information enables identification of any areas within the external boundary over which no claim is made. 
Consideration
Does the information and map provide certainty about the external boundary?
[33]	Schedule B describes the external boundary of the application area with reference to a commencement point on the South Australia / Queensland border and to longitude and latitude coordinate points to six decimal places. Attachment C contains a map titled ‘Yandruwandha Yawarrawarrka Part B’ which shows the external boundary of the application area in dark blue, with the ‘Commencement Point’ and the South Australia / Queensland border labelled. The map also contains a coordinate grid. The assessment in the geospatial report is that the written description and map are consistent and identify the application area with reasonable certainty. I have considered the information in Schedule B and the map in Attachment C and I agree with that assessment. 
Does the information enable identification of excluded areas?
[34]	Schedule B lists areas which are excluded from the application in general terms, such as areas subject to certain types of acts, and areas where native title has been wholly extinguished. I understand it is unrealistic to expect a concluded definition of the areas subject to these provisions to be given in the application, so I am satisfied the areas affected by the general exclusion clauses could be identified at the appropriate time. 
Conclusion
[35]	As I consider that both the external boundary and the excluded areas of the application can be identified from the information with reasonable certainty, and that the map shows the external boundary, I am satisfied that s 190B(2) is met.
Identification of the native title claim group – s 190B(3) condition met
What is required to meet s 190B(3)?
[36]	To meet s 190B(3), the Registrar must be satisfied that: 
(a)	the persons in the claim group are named in the application; or 
(b)	the persons in the claim group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group. 
[37]	A description of the claim group is provided in Schedule A, therefore s 190B(3)(b) is applicable. My consideration is limited to information in the application and whether I can be satisfied as to the sufficiency of the description of the claim group, for the purpose of facilitating the identification of any person as part of the group. I am not required or permitted to be satisfied about the correctness of the description of the claim group.
Consideration
[38]	Schedule A states:
The native title claim group consist of those living Aboriginal people who identify as, and are recognised by other Yandruwandha Yawarrawarrka People as Yandruwandha or Yawarrawarka (or both), because:
(a) he or she is biologically descended from one or more of the following Yandruwandha Yawarrawarrka: [list of named apical ancestors]; or
(b) he or she is biologically descended from such other ancestor who is acknowledged by the Yandruwandha Yawarrawarrka People as a Yandruwandha or Yawarrawarrka apical ancestor.
[39]	I understand that where a claim group description contains a number of paragraphs, the paragraphs should be read as part of one discrete passage, if such an approach is reasonably open. Applying this approach, my understanding is that all members of the claim group must:
(a)	identify as Yandruwandha and/or Yawarrawarrka; and
(b)	be recognised as such by other members of the claim group.
[40]	I also understand that the claim group members must be a biological descendant of either one of the ancestors named in paragraph (a), or of such other ancestor who is acknowledged as such by the claim group.
[41]	I will consider each of these criteria below.
Descent
[42]	The Court has held that describing a claim group with reference to descent from named ancestors satisfies the requirements of s 190B(3)(b). I consider descent from one of the named ancestors could be assessed objectively, whereas the identification of ancestors acknowledged as such by the claim group may be a more subjective exercise. In my view, requiring a person to show descent from an identified ancestor, either named in the application or acknowledged by the claim group as a Yandruwandha and/or Yawarrawarrka ancestor, provides an appropriate starting point from which to commence enquiries about whether a person is a member of the claim group. 
Identification 
[43]	The Court has commented that the criterion of self-identification can be ascertained either by assertion or by virtue of the way in which the individual conducts themselves. I consider that identification contains a subjective element and enquiries to the individual in question would likely reveal whether they identify as Yandruwandha and/or Yawarrawarrka.
Recognition
[44]	The Court has also commented that as to substantive matters concerning membership, the claim group must act in accordance with traditional laws and customs, and that membership must be based on group acceptance. The Full Court has agreed that the internal view of the members of the claim group is a relevant factor in determining whether a group constitutes a society, stating: ‘[t]he unity among members of the group required by Yorta Yorta means that they must identify as people together who are bound by the one set of laws and customs or normative system’. I consider that recognition is also a subjective criterion and by applying the above judicial guidance, I understand the claim group’s traditional laws and customs would operate to inform their internal view, from which it would be possible to ascertain whether an individual is recognised as a member of a claim group.
Conclusion
[45]	I am satisfied the application describes the persons in the claim group sufficiently clearly such that it can be ascertained whether any particular person is a member of the group as required by s 190B(3)(b). This means s 190B(3) is met. 
Identification of claimed native title – s 190B(4) condition met
What is required to meet s 190B(4)?
[46]	To meet s 190B(4), the Registrar must be satisfied the description is sufficient to allow the claimed native title rights and interests to be identified. My consideration is confined to the information in the application and my task is limited to determining whether the claimed rights and interests can be understood and have meaning. While the claimed rights may or may not be ‘native title rights and interests’ in accordance with the definition in s 223, I consider that assessment is part of the task at s 190B(6), where I must decide whether the claimed rights are established as native title rights on a prima facie basis. 
Consideration
[47]	Paragraph 1 of Schedule E provides that exclusive possession is claimed in areas where it can be recognised. Paragraph 2 of Schedule E provides that in areas where exclusive possession cannot be recognised, 13 non-exclusive rights are claimed. Paragraph 3 specifies certain limitations on some of the non-exclusive rights claimed, for example that they do not extend to a right to use minerals or petroleum in the application area. Paragraph 4 provides that the rights are subject to the traditional laws and customs of the native title holders and the laws of Queensland and the Commonwealth, including the common law. Finally, paragraph 5 provides that the applicant acknowledges that the applicant for the Wongkumara claim is entitled to assert and claim non-exclusive native title rights to the application area.
[48]	I understand the rights and interests claimed must form an exhaustive list. In my view, paragraphs 1–2 of Schedule E provide such a list and that there is no contradiction within the description. I consider the claimed rights are clear and understandable, sufficient for the purposes of s 190B(4). I also consider the limitations on the claimed rights are understandable from the information provided in paragraphs 3–5 of Schedule E. 
Conclusion
[49]	I am satisfied the description is sufficient to understand and identify the claimed rights and interests, which means s 190B(4) is met. 
Factual basis for claimed native title – s 190B(5) condition met
What is required to meet s 190B(5)?
[50]	To meet s 190B(5), the Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist, is sufficient to support the following assertions: 
(a)	that the claim group have, and the predecessors of those persons had, an association with the area; and
(b)	that there exist traditional laws acknowledged by, and traditional customs observed by, the claim group that give rise to the claim to native title rights and interests; and
(c)	that the claim group have continued to hold the native title in accordance with those traditional laws and customs. 
What information has been provided in support of s 190B(5)?
[51]	As discussed above, Schedule E describes the native title rights and interests claimed by the claim group. Schedule F refers to Attachment F, which describes the factual basis of the claim. Schedule G describes activities that claim group members undertake in the application area. Schedule M, which asks applicants to detail the traditional physical connection that a member of the claim group has with the application area, refers to information in Attachment F. I consider this is the extent of the material provided in support of s 190B(5). 
What is required to meet s 190B(5)(a)?
[52]	As confirmed by Reeves J in McLennan, in order to satisfy the condition in s 190B(5)(a), it will be sufficient if the applicant demonstrates that:
(a)	the claim group presently has an association with the application area, and the claim group’s predecessors have had an association with the application area since sovereignty or at least since European settlement;
(b)	‘there is an association between the whole group and the area, although not all members must have such association at all times’; and
(c)	there is an association with the whole area claimed, rather than an association with only part of it or ‘very broad statements’, which have no ‘geographical particularity’.
What information has been provided in support of s 190B(5)(a)?
[53]	Attachment F provides the following information:
(a)	European contact with the predecessors of the claim group first occurred in 1845 when Charles Sturt traversed the region, followed by Burke and Wills in 1860 who recorded the location of the Bullo Bullo / Pulu Pulu waterhole in the application area;
(b)	Settlement in the region of the application area occurred with the establishment of pastoral stations during the 1850s–1860s;
(c)	Apical ancestors including Nellie, Clara and the two Annies are recorded in and around the application area in the early decades of settlement, including at Innamincka and at Cordillo, Nappa Merrie and Arrabury stations, with the birth, marriage, employment and burial places of many apical ancestors documented in the historical record;
(d)	The birthplaces of some of the children of the apical ancestors are also recorded in the region of the application area in the 1920s, including at Windorah and Innamincka;
(e)	In 1904, Howitt recorded Yawarrawarrka and Yandruwandha speakers along Cooper Creek, which crosses the application area, and recorded some of their beliefs, laws and customs, including protocols for visitors from other groups and the operation of a regional trade network;
(f)	Wills, Howitt and other early observers described the predecessors of the claim group traversing their country, including to participate in trade, mine ochre for ceremonial use and quarry particular rocks to produce grinding slabs;
(g)	Early records also describe the predecessors of the claim group using particular methods to cook fish and native water rats that they caught in the creeks of the application area;
(h)	Current claimants describe the same or similar methods of cooking fish and water rats caught in Cooper Creek and other water sources in the application area, and how they have taught younger members of the claim group these skills whilst on country;
(i)	Current claimants also describe how they have inherited rights and obligations from their predecessors, to look after the application area and certain spiritual places within it, including one near Saint Ann’s homestead;
(j)	Traditional burial practices continue to be observed, with claim group members buried in accordance with those practices on Nappa Merrie and Arrabury stations in recent times.
[54]	Schedule G describes visits to the application area that current members of the claim group undertake, during which they catch and cook fish, and fulfil their spiritual obligations to maintain ceremonial sites, as they were taught to do so as children.
Is the factual basis sufficient to meet 190B(5)(a)?
[55]	I understand it is not necessary to elevate the requirements of the registration test to the impossible, as they are already sufficiently ‘stringent’. Therefore, in considering the factual basis of this application I have noted that the application area is located in a very remote desert area of western Queensland, some distance from any established towns or centres. According to the Tribunal’s geospatial database, the tiny town of Innamincka lies 25 kilometres away, across the border in South Australia. To the north east, Durham and Windorah are approximately 125 and 195 kilometres away respectively. I have assessed the factual basis with reference to the judicial guidance about the appropriateness of construing the Native Title Act beneficially.
[56]	From Attachment F, I understand that settlement in the region of the application area occurred with the establishment of pastoral stations during the 1850s–1860s and that the apical ancestors and other predecessors of the claim group were recorded in and around the application area in the early decades of settlement. The historical sources record the birthplaces of some of the apical ancestors and that the predecessors traversed the application area, utilising its various resources for food, trade and ceremonial purposes. I understand it is appropriate to make a retrospective inference that earlier generations of the claim group’s predecessors likely had the same or a similar association with the application area at the time of British sovereignty. 
[57]	The current claimants describe how they were taught to use the resources of the application area and the spiritual significance of certain sites by their parents and grandparents. Some of the children of the apical ancestors are recorded around the application area in the 1920s, and noting the relatively recent date of settlement in the application area, I consider it reasonable to infer that the intervening generations of the claim group had a similar association to that of the generation alive at the time of settlement, and which the current members of the claim group now enjoy. Claimants describe their use of the application area for fishing and hunting, and how they continue to maintain and protect particular sites, including burial sites for recently and long-deceased predecessors. In my view, the factual basis supports an association between the predecessors of the claim group at the time of settlement and since that time.
[58]	Attachment F contains several maps of the region of the application area, which is helpful to my consideration at s 190B(5)(a). Using those maps and the Tribunal’s geospatial database, I can see that the pastoral stations with which the claim group are associated lie in and around the application area. Nappa Merrie overlays the centre of the application area while Arrabury extends beyond the northern tip. Cordillo Downs, which is referenced as ‘Cordillo’ in the application, lies immediately adjacent to the application area to the west, on the South Australian side of the border. Saint Ann’s is also located just over the other side of the border. I consider there is information in the application supporting physical and spiritual associations between claim group members and all these locations. I can also see that Cooper Creek travels horizontally through the centre of the application area and there is information in the application about claim group members, both previous and current, being present in the area of Cooper Creek and utilising its resources. In my view, the factual basis is sufficient to support an association with the whole area claimed. 
Conclusion – s 190B(5)(a)
[59]	 I am satisfied that the factual basis is sufficient to support the assertion that the claim group has, and its predecessors had, an association with the application area. This means s 190B(5)(a) is met.
What is required to meet s 190B(5)(b)?
[60]	To meet s 190B(5)(b), the factual basis must be sufficient to support an assertion that there exist traditional laws acknowledged and traditional customs observed by the claim group that gives rise to the claim to native title rights and interests. ‘Native title rights and interests’ is defined in s 223(1)(a) as those rights and interests ‘possessed under the traditional laws acknowledged, and traditional customs observed,’ by the native title holders. 
[61]	In Yorta Yorta, the High Court held that a ‘traditional’ law or custom is one which has been passed from generation to generation of a society, usually by word of mouth and common practice. The High Court further held that in the context of the Native Title Act, ‘traditional’ also carries two other elements, namely:
[I]t conveys an understanding of the age of the traditions: the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown. It is only those normative rules that are "traditional" laws and customs;
[T]he normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty. If that normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist.
[62]	In Warrie, the Full Court held:
Where a rule, or practice or behaviour in relation to the identified land and waters arises from traditional law, and has normative content, then it can be capable of satisfying para (a) of s 223(1);
[A] claim group must establish that the traditional law and custom which gives rise to their rights and interests in that land and waters stems from rules that have a normative character, there is no further gloss or overarching requirement, and no further rigidity. The Native Title Act in terms does not require establishment of some overarching “society” that can only be described in one way and with which members of a claim group are forever fixed in relation to any other land and waters over which they assert native title.
[63]	In Gudjala 2009, Dowsett J held that if descent from named ancestors is the basis of membership of the group, the factual basis must demonstrate some relationship between those ancestors and the pre-sovereignty society from which the laws and customs of the claim group are derived.
[64]	I therefore understand my assessment of the sufficiency of the factual basis under s 190B(5)(b) requires the identification of:
(a)	a link between the pre-sovereignty society, the apical ancestors and the claim group in the application area; and
(b)	the continued observance of normative rules by the successive generations of the claim group, such that the normative rules can be described as ‘traditional laws and customs’.
What information has been provided in support of s 190B(5)(b)? 
[65]	In addition to the information summarised above at s 190B(5)(a), Attachment F provides:
(a)	The claim group belongs to a regional society located around Innamincka, which operated as ceremonial and trading centre prior to European settlement;
(b)	Howitt and others recorded the predecessors of the claim group participating in trade in the region, including for ochre, grinding stones, wooden shields and bush tobacco;
(c)	The predecessors, including the apical ancestors, observed laws and customs and taught ‘propriety of conduct’ to their younger generations, which included protocols to access country and the classificatory kinship system;
(d)	The current claim group are the descendants of the apical ancestors and have inherited rights and obligations in the application area through their predecessors;
(e)	One claimant describes how his grandmother, one of the apical ancestors, taught his mother about the kinship system, associated totems and obligations to protect certain places on the application area, which she in turn taught to him;
(f)	Another claimant explains how the ‘old people’ have taught her about the rules that pertain to the application area, the appropriate access to gender-restricted sites and her obligation to look after and protect such sites, as passed down from her grandmother and mother.
[66]	In Schedule G, a claimant explains that she was taught from her youth who she was and where she came from, and upon visiting particular sites in the application area she feels an obligation to undertake particular protocols, stating ‘I just have to put my hands up and talk to the old people who are still there and looking at us’.
Is the factual basis sufficient to meet 190B(5)(b)?
[67]	I consider that Attachment F describes the features of a pre-sovereignty regional society which included the application area and shows how the predecessors of the claim group participated in that society, by observing common customs in relation to visiting others’ country and trade, for example. I understand that it is not necessary for the entire population of such a regional society, who observe common laws and customs, to be part of the claim group for any one particular area of it. The material provides that the apical ancestors were born in the early decades of settlement and I consider they would have lived with predecessors who were members of the pre-sovereignty society. The material also provides that the current claimants are the descendants of the apical ancestors. In my view, there is sufficient information to support a link between the pre-sovereignty society, the apical ancestors and the current claim group.
[68]	I also consider there is sufficient information to show that there exist traditional laws and customs acknowledged and observed by the claim group. I have formed this view by considering the information in Attachment F about the laws and customs observed by the claim group in the early years of settlement and how the members of the current claim group observe these same laws and customs today. In my view, the information about claimants abiding by the rules of appropriate access to country, undertaking certain protocols at particular sites of significance, and the observing a kinship system, are examples of laws and customs with normative content, as described in Warrie. I also note the information in the historical record about the predecessors of the claim group catching and preparing the food resources of the application area in particular ways, and that current members of the claim group continue to use those same methods. In addition to the information from the historical record, claimants describe how they have learnt the laws and customs from their parents and grandparents through teaching, oral transmission and common practice. One claimant’s mother was taught the laws by one of the apical ancestors, and in turn taught those laws to her son. In my view, this example and others in the application support the assertion that the laws and customs of the claim group are ‘traditional’, in the sense described in Yorta Yorta.
Conclusion – s 190B(5)(b)
[69]	I am satisfied that the factual basis is sufficient to support the assertion that there exist traditional laws acknowledged and traditional customs observed by the claim group, that give rise to the claim to native title rights and interests. This means s 190B(5)(b) is met.
What is required to meet s 190B(5)(c)?
[70]	Meeting the requirements of this condition relies on whether there is a sufficient factual basis to support the assertion at s 190B(5)(b), that there exist traditional laws and customs which give rise to the claimed native title rights and interests. It also requires a sufficient factual basis to support an assertion that there has been continuity in the observance of traditional laws and customs going back to sovereignty or at least to European settlement.
Is the factual basis sufficient to meet s 190B(5)(c)?
[71]	In my view, there are sufficient examples in the application to support the assertion of continuity of traditional laws and customs. The material shows how the current members of the claim group continue to observe the laws and customs taught to them by their predecessors and are passing that knowledge onto the younger generations. In addition to the information summarised above at ss 190B(5)(a)–(b), Attachment F provides examples of claimants taking younger members to the application area and teaching them various laws and customs, including how to protect certain ceremonial places and other significant sites. One claimant also describes how he has shown younger people how to collect and correctly prepare various resources from the application area, including water ferns, mussels, fish and water rats. Attachment F explains that claim group members undertake regular camping trips to the application area and it is during those trips that their children and grandchildren are taught about the spiritual and physical features of the application area, and how to utilise its resources, in the same ways as the current claimants were taught by their predecessors.
[72]	I consider these examples provide a sufficient factual basis to support the assertion that the traditional laws and customs have been continuously observed by the claim group, since at least the time of settlement in the application area. 
Conclusion – 190B(5)(c)
[73]	I am satisfied the factual basis is sufficient to support the assertion that the claim group have continued to hold the native title in accordance with traditional laws and customs. This means s 190B(5)(c) is met. 
Conclusion
[74]	I am satisfied that the factual basis on which it is asserted that the claimed native title rights and interests exist is sufficient to support the assertions of ss 190B(5)(a)–(c). This means that s 190B(5) is met. 
Prima facie case – s 190B(6): condition met
What is required to meet s 190B(6)?
[75]	To meet s 190B(6), the Registrar must consider that, prima facie, at least some of the native title rights and interests claimed can be established. As discussed above, s 223(1) provides that a ‘native title right or interest’ is one that is held under traditional laws acknowledged and traditional customs observed by the claim group. Section 190B(6) imposes a more onerous test which requires information about each of the individual rights and interests claimed. 
Consideration
Which of the claimed rights are established on a prima facie basis?
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;
[76]	In Attachment F, one claimant describes how his predecessors ‘belonged’ to the application area and the right to access has been inherited from them. He states ‘all my mob have the right to be there… I can go over that country, I can camp, fish, hunt, whatever there. And I do.’ There are many other specific examples in Attachment F of claim group members, past and present, accessing and moving about the application area, some of which I have summarised above at s 190B(5). 
[77]	I consider this right is prima facie established.
(b) the right to live, to camp and, for the purpose of exercising the Native Title Rights and Interests, to erect shelters and other structures on the Application Area;
[78]	According to Attachment F, Howitt documented Yawarrawarrka people encamped in huts along Cooper Creek. Current members of the claim group continue to camp on the application area with their children and grandchildren. I understand there are no settlements within the application area which would enable the claimants to live there permanently, however in recent times claimants have camped on the application area for ‘the better part of a year’. I also note the information about building particular structures on the application area, including windbreaks and wells with stone covers.
[79]	I consider this right is prima facie established.
(c) the right to fish and hunt on the land and waters of the Application Area without limitation as to purpose;
[80]	According to Attachment F, historical accounts from as early as 1861 document the predecessors of the claim group hunting and fishing in the application area, including for mussels and water rats, which I have summarised above. Current claimants have identified to anthropologists the same species utilised by their predecessors and explain that they use the same or similar methods, such as fishing with particular types of nets.
[81]	I consider this right is prima facie established.
(d) the right to gather and use the natural resources of the Application Area, such as food, medicinal plants, wild tobacco, timber, resin and stone but not the matters specified in paragraph [3] below;
(e) the right to share and exchange the subsistence and other traditional resources of the Application Area but not the matters specified in paragraph [3] below;
3. For paragraphs [2(d)] and [2(e)] above, the matters are:
(a) animals that are the private personal property of another;
(b) crops that are the private personal property of another; and
(c) minerals as defined in the Mineral Resources Act 1989 (Qld); or
(d) petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).
[82]	As discussed above at s 190B(5), the predecessors of the claim group participated in a regional trade network, through which natural resources, including bush tobacco, flour made from water fern and grinding stones were exchanged. In Attachment F, one claimant describes how he gathers and prepares water fern in the same manner as his ancestors.
[83]	I consider these rights are prima facie established.
(f) the right to use the water of the Application Area;
[84]	Early observers noted the arid conditions of the application area and described the use of water bags by the ‘Cooper people’, which I infer included predecessors of the claim group living around Cooper Creek. The use and maintenance of particular wells on the application area is also described in Attachment F. The material provides that the current claimants know the location of water sources on the application area.
[85]	I consider this right is prima facie established.
(g) the right to cook on the Application Area and to light fires for domestic purposes but not for the clearance of vegetation;
[86]	Attachment F provides examples from the historical record and from current claimants, of the use of fire to cook food on the application area, including the traditional method of using hot coals to open mussels and roast animals.
[87]	I consider this right is prima facie established.
(h) the right to engage and participate in cultural activities including those relating to births and deaths;
 (i) the right to conduct ceremonies and hold meetings on the Application Area;
(j) the right to bury Yandruwandha Yawarrawarrka people on the Application Area;
[88]	Attachment F provides that a number of predecessors are buried on the application area, including in recent times. Attachment F also describes the claim group’s burial practices as ‘traditional’ and provides photos of some gravesites located on the application area. The historical record documents the participation of the claim group’s predecessors in regional ceremonies. A claimant describes important ceremonial places in and around the application area and how she and her mother know the women’s ceremonies for those places and the women’s business.
[89]	I consider these rights are prima facie established.
(k) the right to teach on the Application Area the physical and spiritual attributes of locations and sites;
[90]	As discussed above at s 190B(5)(b), I consider the factual basis supports the existence of traditional laws and customs, and that this is supported by the information about claim group members teaching the physical attributes of locations and sites on the application area, and the normative rules attached to those sites. Claimants provide that they were taught these things by their predecessors when they were children. I understand from Attachment F that today, cultural heritage or ‘clearance’ work provides an opportunity to teach the attributes of the application area to the younger generations.
[91]	I consider this right is prima facie established.
(l) the right to visit, maintain and protect sites and places of cultural and religious significance to the Native Title Holders under their traditional laws and customs on the Application Area;
[92]	According to Attachment F, there are historical records which describe how the predecessors of the claim group protected significant sites in the application area. The current claimants describe how they protect particular sites and that they feel an obligation to do so. The maintenance work that the claimants undertake includes clearing rubbish and replacing stones that may have become dislodged.
[93]	I consider this right is prima facie established.
(m) the right to be accompanied onto the Application Area by those people who, though not Native Title Holders are:
(i) spouses of Native Title Holders; or
(ii) people required by traditional law and custom for the performance of ceremonies or cultural activities on the Application Area; or
(iii) people who have rights in relation to the Application Area according to the traditional laws and customs acknowledged by the Native Title Holders; or
(iv) people required by native title holders to assist in, observe, or record traditional activities on the Application Area.
[94]	Attachment F also provides examples of the predecessors of the claim group accompanying non-native title holders through the application area, including early observers. I understand that today, the claim group members accompany non-members onto the application area as part of their cultural heritage clearance work.
[95]	I consider this right is prima facie established.
Which of the claimed rights are not established on a prima facie basis?
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 s 238 and/or ss47, 47A and 47B apply), members of the native title claim group claim, subject to paragraph [5] below, 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.
5. The whole of the application area is subject to an agreement made in the course of mediation in the Federal Court proceeding QUD851/2018. That agreement was made between the Applicant in the present proceeding and the Applicant in proceeding QUD851/2018. By reason of the agreement, the present Applicant acknowledges that the Applicant in proceeding QUD851/2018 is entitled to assert and claim non-exclusive native title rights over the whole of the application area.
[96]	Unlike each of the claimed non-exclusive rights, the right to exclusive possession is not specifically addressed in Attachment F. I have examined the application and I am satisfied that it does not contain information about the operation of such a right in the application area by the claim group. There is also no information to explain how this claim group’s claimed right to exclusive possession operates in the application area in tandem with any non-exclusive rights claimed by the Wongkumara people in the overlapping application of QUD851/2018, as provided for in paragraph 5 of Schedule E.
[97]	I consider this right is not prima facie established.
Conclusion
[98]	I am satisfied that some of the rights and interests claimed in the application are established on a prima facie basis. As I am satisfied that the factual basis is sufficient to support the existence of traditional laws and customs, in my view it follows that the rights which are prima facie established are held pursuant to those traditional laws and customs, and can therefore be described as ‘native title rights and interests’. This means s 190B(6) is met.
Physical connection – s 190B(7): condition met
What is required to meet s 190B(7)?
[99]	To meet s 190B(7), the Registrar must be satisfied that at least one member of the claim group:
(a)	currently has or previously had a traditional physical connection with any part of the land or waters covered by the application; or
(b)	previously had and would reasonably have been expected currently to have such a connection but for things done by the Crown, a statutory authority of the Crown or any holder of or person acting on behalf of the holder of a lease, other than the creation of an interest in relation to land or waters.
[100]	Section 190B(7) requires the material to satisfy the Registrar of particular facts such that evidentiary material is required and the physical connection must be in accordance with the traditional laws and customs of the claim group. 
Consideration
[101]	As discussed above, Schedule G provides examples of the physical connection that certain members of the claim group have with the application area, and describes how they access the application area for activities which include camping, fishing and protection of sacred sites. There are also similar examples in Attachment F, many of which I have extracted above. In light of the information in the application, I am satisfied that members of the claim group have a physical connection to the application area.
[102]	Given my conclusion at s 190B(5)(b), that the factual basis is sufficient to support the existence of traditional laws and customs, it follows that I am satisfied that the physical connection of the claim group is held pursuant to those laws and customs, such that it can be described as ‘traditional’.
Conclusion
[103]	I am satisfied at least one member of the claim group currently has or had a traditional physical connection with a part of the application area, as required by s 190B(7)(a). This means s 190B(7) is met.
No failure to comply with s 61A – s 190B(8): condition met
What is required to meet s 190B(8)?
[104]	Section 190B(8) requires the application comply with ss 61A(1)–(3).
Consideration
[105]	In my view, the application complies with each of the requirements of ss 61A(1)–(3):
Section	Requirement	Information addressing requirement	Result	
s 61A(1)	No native title determination application if approved determination of native title	The geospatial report states and my own searches confirm that the application does not overlap any approved determination of native title.	Met	
s 61A(2)	Claimant application not to be made covering previous exclusive possession act areas	Paragraphs 2 and 3 of Schedule B provide that previous exclusive possession act areas are excluded from the application area.	Met 	
s 61A(3)	Claimant application not to claim possession to the exclusion of all others in previous non-exclusive possession act areas	Paragraph 1 of Schedule E provides that exclusive possession is only claimed where it can be recognised.	Met	
Conclusion
[106]	I am satisfied the requirements of s 190B(8) are met.
No extinguishment etc. of claimed native title – s 190B(9): condition met
What is required to meet s 190B(9)?
[107]	Section 190B(9) states that the application must not disclose, and the Registrar must not otherwise be aware that the claimed native title extends to cover the situations described in ss 190B(9)(a)–(c). 
Consideration
[108]	In my view, the application does not contravene any of the restrictions found in s 190B(9):
Section	Requirement	Information addressing requirement	Result	
s 190B(9)(a)	No claim made of ownership of minerals, petroleum or gas that are wholly owned by the Crown	Schedule Q provides that no claim to minerals, petroleum or gas owned by the Crown is made.	Met	
s 190B(9)(b)	Exclusive possession is not claimed over all or part of waters in an offshore place	Schedule P states the application area does not encompass any offshore place.	Met	
s 190B(9)(c)	Native title rights and/or interests in the application area have otherwise been extinguished	Paragraph 4 of Schedule B provides that any area where native title rights have been wholly extinguished is excluded from the application area.	Met	
Conclusion
[109]	I am satisfied the requirements of s 190B(9) are met.
End of reasons

Attachment A
Summary of registration test result
Application name	Aaron Charles Paterson & Anor on behalf of the Yandruwandha Yawarrawarrka People and State of Queensland	
NNTT No.	QC2021/002	
Federal Court of Australia No.	QUD133/2021	
Date of decision	11 June 2021	

Section 190B conditions

Test condition	Sub-condition/requirement	Result	
s 190B(2)		Met	
s 190B(3)		Met	
s 190B(4)		Met	
s 190B(5)	ss 190B(5)(a)–(c)	Met	
s 190B(6)		Met	
s 190B(7)		Met	
s 190B(8)		Met	
s 190B(9)		Met	

Section 190C conditions

Test condition	Sub-condition/requirement	Result	
s 190C(2) 	ss 61–2 	Met	
s 190C(3)		Not met
	
s 190C(4)	ss 190C(4)(a)	Met
	
s 190C(5)		N/A