Registration Decision
Application name	Wongkumara People 	
Name of applicant	Clancy John McKellar, Iona Dawn Smith, Ernest (Hope) Ebsworth, Rosemary (Rose) Anne Wilson, Margaret Anne Collins, Sharleen Louise Knight, Archie Alfred Ebsworth, Norman John Hodge and Jacqueline Elizabeth Hill 	
Federal Court of Australia No.	QUD851/2018	
NNTT No.	QC2008/003	
Date of Decision	1 November 2024	

Claim accepted for registration
I have decided that the claim in the Wongkumara People application satisfies all of the conditions in ss 190B–190C of the Native Title Act 1993 (Cth). Therefore the claim must be accepted for registration and entered on the Register of Native Title Claims.

Michael Raine
Delegate of the Native Title Registrar pursuant to ss 190–190D of the Act under an instrument of delegation dated 5 February 2024 and made pursuant to s 99 of the Act.
Reasons for Decision
Cases cited
Anderson on behalf of the Numbahjing Clan within the Bundjalung Nation v Registrar of the National Native Title Tribunal [2012] FCA 1215; (2012) 297 ALR 660 (‘Anderson’)
Aplin on behalf of the Waanyi Peoples v Queensland [2010] FCA 625 (‘Aplin’)
Burragubba on behalf of the Wangan and Jagalingou People v Queensland [2017] FCA 373 (‘Burragubba’)
Butchulla People v Queensland [2006] FCA 1063; (2006) 154 FCR 233 (‘Butchulla’)
Corunna v Native Title Registrar [2013] FCA 372 (‘Corunna’)
Fesl v Delegate of the Native Title Registrar [2008] FCA 1469; (2008) 173 FCR 150 (‘Fesl’)
Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177; (2019) 273 FCR 350 (‘Warrie’)
Griffiths v Northern Territory [2007] FCAFC 178; (2007) 165 FCR 391 (‘Griffiths’)
Gudjala People #2 v Native Title Registrar [2007] FCA 1167 (‘Gudjala 2007’)
Gudjala People #2 v Native Title Registrar [2008] FCAFC 157; (2008) 171 FCR 317 (‘Gudjala FC’)
Gudjala People #2 v Native Title Registrar [2009] FCA 1572; (2009) 182 FCR 63 (‘Gudjala 2009’)
Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) [2007] FCA 31; (2007) 238 ALR 1 (‘Harrington-Smith’)
Lawson on behalf of the ‘Pooncarie’ Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 (‘Lawson’)
Martin v Native Title Registrar [2001] FCA 16 (‘Martin’) 
McKellar on behalf of the Wongkumara People v Queensland [2024] FCA 699 (‘Wongkumara Determination’)
McLennan v Queensland [2019] FCA 1969 (‘McLennan’)
Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 (‘Yorta Yorta’)
Noble v Mundraby, Murgha, Harris and Garling [2005] FCAFC 212 (‘Noble’)
Northern Territory v Alyawarr, Kaytetye, Wurumunga, Wakaya Native Title Claim Group [2005] FCAFC 135; (2005) 145 FCR 442 (‘Alyawarr’)
Northern Territory of Australia v Doepel [2003] FCA 1384; (2003) 133 FCR 112 (‘Doepel’)
Paterson on behalf of the Yandruwandha Yawarrawarrka People v Queensland [2024] FCA 700 (‘Yandruwandha Yawarrawarrka Determination’).
Sampi v Western Australia [2005] FCA 777 (‘Sampi’)
Sampi on behalf of the Bardi and Jawi People v Western Australia [2010] FCAFC 26; (2010) 266 ALR 537 (‘Sampi FC’)
Strickland v Native Title Registrar [1999] FCA 1530; (1999) 168 ALR 242 (‘Strickland’) 
Ward v Northern Territory [2002] FCA 171 (‘Ward’) 
Weribone on behalf of the Mandandanji People v Queensland [2013] FCA 255 (‘Weribone’)
Western Australia v Native Title Registrar [1999] FCA 1591; (1999) 95 FCR 93 (‘WA v NTR’)
Western Australia v Strickland [2000] FCA 652; (2000) 99 FCR 33 (‘Strickland FC’)
Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 (‘Ward HC’)
Wiri People v Native Title Registrar [2008] FCA 574; (2008) 168 FCR 187 (‘Wiri People’)
Background
[1]	This decision concerns an application filed on 26 June 2024, on behalf of the Wongkumara People native title claim group, further amending the native title determination application QUD851/2018 Clancy John McKellar & Ors on behalf of the Wongkumara People and State of Queensland (‘Wongkumara Claim’). The Wongkumara Claim has a long procedural history, which is set out in the Wongkumara Determination, including the following: 
•	the Wongkumara Claim was filed on 11 March 2008 and was accepted for registration on the Register of Native Title Claims (‘Register’) on 12 April 2008;
•	a number of amendments have been made to the Wongkumara Claim, including on 26 August 2009, 12 September 2016 and 20 May 2022;
•	on 5 November 2020 orders were made by the Federal Court of Australia (‘Court’) to partition the Wongkumara Claim into Parts A and B;
•	on 28 April 2021 an application was filed by the Yandruwandha Yawarrawarrka People over Part B of the Wongkumara Claim (QC2021/002; QUD133/2021) (‘Yandruwandha Yawarrawarrka Claim’);
•	further partitioning orders were made by the Court, including on 21 July 2021 and 29 April 2022, with the result that the Wongkumara Claim was partitioned as follows: 
o	‘Queensland Part A’ (the lands and waters of Part A that were within Queensland);
o	‘NSW Part A’ (the lands and waters of Part A that were within New South Wales); and
o	‘Queensland Part B’ (the lands and waters overlapped by the Yandruwandha Yawarrawarrka Claim);
•	on 14 June 2024 further orders were made in preparation for a proposed consent determination over part of the Wongkumara Claim scheduled to occur on 3 July 2024. The orders provided that an area defined as the ‘NSW 47C area’ or ‘NSW Part B determination area’ would be determined on a date not before October 2024. In addition to facilitating an agreement under s 47C of the Act, the further partition was intended to avoid delay to the consent determination;
•	on 24 June 2024 orders were made granting leave to further amend the Wongkumara Claim, including to provide for the application of s 47C over the partitioned ‘NSW 47C area’ or ‘NSW Part B determination area’;
•	on 26 June 2024, pursuant to the orders of 24 June 2024, a ‘Fourth Amended Claimant Application’ was filed in the Wongkumara Claim, being the amended application the subject of this decision (‘Fourth Amended Application’);
•	on 3 July 2024 a consent determination was made in the Wongkumara Claim over the areas described as Queensland Part A, NSW Part A and Queensland Part B.
[2]	This registration test decision relates only to the remaining undetermined ‘NSW 47C area’ or ‘NSW Part B determination area’ (‘Claim Area’) within the Sturt National Park in New South Wales, south of the Queensland border. This Claim Area was excluded from the consent determination made on 3 July 2024 pursuant to the orders made on 14 June 2024. 
[3]	The Registrar of the Court gave a copy of the Fourth Amended Application and accompanying affidavits to the Native Title Registrar (‘Registrar’) on 27 June 2024 pursuant to s 64(4) of the Act. This has triggered the Registrar’s duty to consider the claim made in the application for registration in accordance with s 190A.
Preliminary considerations
Does the registration test apply to the amended application?
[4]	Sections 190A(1A), (6), (6A) and (6B) set out the decisions available to the Registrar under s 190A. Section 190A(6) provides that the Registrar must accept the claim for registration if it satisfies all of the conditions of s 190B (which the Act refers to as dealing mainly with the merits of the claim) and s 190C (which the Act refers to as dealing with procedural and other matters). Section 190A(6B) provides that the Registrar must not accept the claim for registration if it does not satisfy all of the conditions of ss 190B–190C.
[5]	Section 190A(1A) provides for exemption from the registration test for certain applications amended under s 87A.  As the granting of leave by the Court to amend the application was not made pursuant to s 87A, I am satisfied that s 190A(1A) does not apply to the amended application. 
[6]	Section 190A(6A) sets out the conditions under which the Registrar must accept an amended application for registration without testing under ss 190B and 190C.  The amendments that have been made to the Wongkumara Claim include the following:
•	amending the description of the native title claim group;
•	amending Schedule B to refer to s 47C; 
•	amending the description of the claimed native title rights and interests at Schedule E;
•	amending Schedule R to also refer to an additional affidavit which is included at Attachment R-2; and
•	other minor and consequential amendments. 
[7]	I am satisfied that s 190A(6A) does not apply because the Fourth Amended Application includes amendments that do not meet the conditions set out at s 190A(6A)(d)(i)–(v). As such, the amended application must be assessed under each of the provisions of ss 190B and 190C (‘registration test’).
[8]	I have decided that the claim in the application must be accepted for registration and this document sets out my reasons for that decision. 
Procedural fairness
Process
[9]	On 12 July 2024 a Senior Officer of the NNTT requested any additional information from the applicant by 26 July 2024. The applicant did not provide any additional material in response.
[10]	On 12 July 2024 a Senior Officer provided a copy of the Fourth Amended Application and accompanying documents to the State of Queensland, inviting any submissions by 26 July 2024. No submissions were received from the State of Queensland.
[11]	On 28 August 2024 a Senior Officer also wrote to the State of New South Wales to provide a copy of the Fourth Amended Application and accompanying documents and to request any submissions by 4 September 2024.
[12]	On 3 September 2024 submissions were provided by the State of New South Wales (‘NSW Submissions’). These were provided to the applicant on 4 September 2024 for any comment by 18 September 2024.
[13]	In response to these submissions, the applicant filed an affidavit deposed by the legal representative of the applicant, Mr Eduard Neumann on 18 September 2024 (‘Neumann September 2024 Affidavit’). On 20 September 2024 a Senior Officer of the NNTT wrote to the State of NSW to ask for any comment on the Neumann September 2024 Affidavit by 4 October 2024.
[14]	On 3 October 2024 the State of New South Wales provided further submissions (‘NSW Supplementary Submissions’). 
[15]	The NSW Supplementary Submissions were provided to the applicant on 4 October 2024, with a request for any comment to be provided to the NNTT by 11 October 2024. In addition, the applicant was informed that the delegate had identified possible issues with respect to the conditions at s 190C(2), (4) and (5), and the applicant was invited to advise whether these were proposed to be addressed for the purpose of registration testing. In response, the applicant provided correspondence on 21 October 2024 including information relating to the mapping of the s 47C area, and an affidavit of Mr Neumann dated 22 October and filed in the Court on 24 October 2024 (‘Neumann October 2024 Affidavit’).
[16]	This concluded the procedural fairness process.
Application of the principles of procedural fairness
[17]	As a delegate of the Registrar, I am bound by the principles of administrative law, including the rules of procedural fairness in making my decision about whether or not to accept this application for registration. The relevant principles of procedural fairness were set out by Carr J in WA v NTR, as follows:
The authorities establish the following principles:
•	natural justice or procedural fairness is a common law duty to act fairly in the making of administrative decisions which affect rights, interests and legitimate expectations: Kioa v West (1985) 159 CLR 550 at 584;
•	part of the content of that duty is that allegations adverse to a person whose interests are affected should be disclosed to that person before the decision is made so that the person may have a reasonable opportunity to contradict or comment on the adverse material: Kioa v West;
•	the common law duty will only be held not to arise where it is clearly excluded by statute “by plain words of necessary intendment”: Kioa v West at 584; Annetts v McCann (1990) 170 CLR 596 at 598.
[18]	I consider that I was required to ensure that steps were taken to afford procedural fairness to both the applicant, the State of Queensland and the State of New South Wales. The steps taken are set out above at paragraphs 9 to 15. These steps sought to ensure that the applicant, the State of Queensland and the State of New South Wales were provided with copies of any relevant material adverse to their interests. For the applicant, this included the NSW Submissions dated 3 September 2024 and the NSW Supplementary Submissions dated 3 October 2024. For the State of Queensland, this included the Fourth Amended Application and accompanying documents. For the State of New South Wales, this included the Neumann September 2024 Affidavit as well as the material in the Fourth Amended Application. Given that the correspondence provided by the applicant on 21 October 2024 and the Neumann October 2024 Affidavit were provided by the applicant in response to a possible issue identified by the delegate and not arising as a result of the contents of the NSW Submissions, the correspondence and the Neumann October 2024 Affidavit were not provided to the State of NSW. 
Information considered
[19]	Section 190A(3) sets out the information that the Registrar must have regard to in considering a claim under s 190A and provides that the Registrar ‘may have regard to such other information as he or she considers appropriate’.
[20]	I have had regard to the information in the Fourth Amended Application and accompanying documents, as well as the correspondence provided by the applicant on 21 October 2024, Neumann September 2024 Affidavit and Neumann October 2024 Affidavit provided by the applicant. 
[21]	There is no information before me obtained as a result of any searches conducted by the Registrar of State/Commonwealth interest registers.
[22]	I have had regard to the NSW Submissions and NSW Supplementary Submissions in accordance with s 190A(3)(c). The State of Queensland did not provide any submissions that I must have regard to.
[23]	I have also considered it appropriate to have regard to a geospatial assessment and overlap analysis prepared by the NNTT’s Geospatial Services in relation to the area covered by the amended application, dated 5 August 2024 (‘Geospatial Assessment’).
Section 190C: conditions about procedural and other matters —conditions met
Section 190C(2): information etc. required by ss 61–2 – condition met
[24]	I have examined the Fourth Amended Application and for the reasons set out below, I am satisfied that it contains all details and other information and is accompanied by affidavits and other documents as required by ss 61 and 62.
[25]	To meet s 190C(2), the Registrar must be satisfied that the application contains all of the prescribed details and other information, and is accompanied by any affidavit or other document, required by ss 61–62. This condition does not require any merit assessment of the material to be undertaken, however it does seek ‘…to ensure that the application contains “all details” required by s 61…’. As such, in my view s 190C(2) requires consideration of whether the Fourth Amended Application contains the required material and whether such material is sufficient to enable the Registrar to form an opinion about whether the claim satisfies all of the conditions in ss 190B and 190C.
Section 61 – native title applications  
[26]	Section 61(1) provides that only persons included in and authorised by the native title claim group may make a native title determination application for the particular native title claimed. Nine persons are named in the amended application as comprising the applicant. Schedule A contains a description of the native title claim group. Each of the persons comprising the applicant have deposed an affidavit for the purposes of s 62 and these have been annexed to the amended application (‘Applicant Affidavits’). The Applicant Affidavits indicate that each deponent is a member of the native title claim group and is authorised to make the application by the persons in the native title claim group. Attachment R-2 of the amended application contains an affidavit of Mr Neumann dated 20 June 2024 which contains information about the authorisation of the amendments made in the Fourth Amended Application at an authorisation meeting held on 17 and 18 April 2024 (‘2024 Authorisation Meeting’). From the material contained in Schedule A, the Applicant Affidavits and Schedule R, I am satisfied that the Fourth Amended Application has been made in accordance with s 61(1).
[27]	Section 61(2) provides that the persons authorised to make the native title determination application are jointly the applicant and none of the other members of the native title claim group is the applicant. I consider that there is nothing in the amended application or other material that I have considered that suggests otherwise.
[28]	Section 61(3) requires an application to state the name and address for service of the applicant. The names of each of the persons comprising the applicant are stated in the amended application and Part B states the applicant’s address for service. As such, I am satisfied that the Fourth Amended Application contains the information required by s 61(3).
[29]	Section 61(4) requires a native title determination application authorised by persons in a native title claim group to name or describe the persons in that claim group so that it can be ascertained whether any particular person is one of those persons. In Gudjala 2007, Dowsett J emphasised the procedural nature of the exercise undertaken by a delegate under s 190C(2) regarding the details and information required by ss 61 and 62 in contrast to the merits exercise undertaken pursuant to s 190B(3). Schedule A contains a description of the claim group, including that the Wongkumara People are the persons who are the descendants of nine listed apical ancestors (including by adoption) and are recognised and accepted as members of the claim group by other Wongkumara People. I am satisfied that the Fourth Amended Application contains the information required by s 61(4) because Schedule A contains a description of the native title claim group that is sufficiently clear so that it can be ascertained whether any particular person is one of those persons. 
[30]	Section 61(5) provides that the application must be filed in the Court in a manner as prescribed and be accompanied by any prescribed fee. In my view, these are matters for the Court however I note that the Fourth Amended Application is made in the prescribed form and was accepted for filing by the Court on 27 June 2024. 
Section 62(1) and (2): information etc. in relation to certain applications; 
claimant applications 
[31]	Section 62(1)(a) requires a claimant application to be accompanied by an affidavit sworn by the applicant stating certain matters. Item 2 of Part A of the Fourth Amended Application indicates that the persons comprising the applicant were authorised on 28 and 29 February 2016 (‘2016 Authorisation Meeting’). Attachment R-2 of the amended application also contains an affidavit of Mr Neumann affirmed on 20 June 2024 (‘Neumann June 2024 Affidavit’), relating to the 2024 Authorisation Meeting at which the amendments to the Fourth Amended Application were authorised. 
[32]	As noted above, each of the persons comprising the applicant has deposed an affidavit for the purpose of s 62 (the Applicant Affidavits) and these are annexed to the Fourth Amended Application. The Applicant Affidavits were executed in 2016, are in substantially identical terms and include statements described as addressing s 62 of the Act, to the effect that the deponent: 
•	is a member of the Wongkumara claim group through descent from an identified apical ancestor or ancestors; 
•	believes that the native title rights and interests claimed have not been extinguished in relation to any part of the area covered by the application; 
•	believes that none of the area covered by the application is also covered by an approved determination of native title; 
•	believes that all of the statements made in the application are true;
•	is authorised by all the persons in the native title claim group to make the application and deal with matters arising in relation to it, in accordance with a decision-making process (majority vote by show of hands) that was agreed and adopted at the meeting of 28 and 29 February 2016 in Dubbo; and
•	refers to the affidavit of Mr Eduard Neumann sworn on 10 April 2016 for detail in relation to the authorisation meeting. 
[33]	The relevant provisions contained in s 62(1)(a) of the Act relating to the requirements of the affidavits that must accompany a claimant application were amended on 25 March 2021 by the Native Title Legislation Amendment Act 2021 (Cth) (‘2021 Amendment Act’). The further requirements in relation to the affidavits following the 2021 Amendment Act include a requirement to state the details of the process of decision-making in authorising the applicant, whether any conditions were imposed on the authority of the applicant under s 251BA and if conditions were imposed to state that those conditions have been satisfied and how they have been satisfied. 
[34]	I am satisfied that the above statements in the Applicant Affidavits contain the required statements addressing the matters listed at s 62(1)(a)(i)–(v) of the Act as at the time of authorisation on 28 and 29 February 2016. I am also satisfied that the Applicant Affidavits state the process of decision-making that was complied with in authorising the applicant. The material in the Fourth Amended Application, including the material relating to authorisation of the applicant in 2016 and of the amended application in 2024, together with the Neumann October 2024 Affidavit, does not indicate that any conditions were imposed that might come within the requirements of s 62(1)(a) following the 2021 Amendment Act. As such, I am satisfied that the Fourth Amended Application is accompanied by the documents required by s 62(1)(a). 
[35]	Section 62(1)(d) applies where an agreement has been entered into under s 47C and requires a copy of any relevant agreement to accompany the application. I note that the relevant transitional provisions in relation to this requirement set out in the 2021 Amendment Act provide that s 62(1)(d) applies to claimant applications made after the commencement of the provision as well as to undetermined applications made prior to the commencement of the provision. As such, the requirement at s 62(1)(d) applies to the amended application.
[36]	At the time of filing on 26 June 2024, the Fourth Amended Application did not include a copy of any agreement entered into under s 47C. I note that Schedule L of the amended application has not been made in accordance with the current version of the Form 1, and as such does not include clauses relating to s 47C. 
[37]	The State of New South Wales made submissions in relation to this requirement, as follows:
14.	Section 190C(2) of the NT Act requires the Registrar to be satisfied that the amended application contains all details and other information, and is accompanied by any affidavit or other document, required by ss 61 and 62 of that Act.
15.	Section 62(1)(d) of the NT Act relevantly provides that an application may contain details of:
“… (d) if the operation of section 47C (national parks etc. covered by native title applications) has been agreed to in writing in accordance with paragraph 47C(1)(b) in relation to the whole or any part of the area covered by the application--must be accompanied by a copy of the agreement, and if there is an agreement under subsection 47C(5), that agreement.”
16.	The Attorney General submits that a copy of the s 47C agreement should be annexed to that application in accordance with s 62(1)(d) of the NT Act. 
[38]	The applicant subsequently filing an affidavit in the Court on 18 September 2024 annexing the s 47C agreement (the Neumann September 2024 Affidavit). This affidavit states that the s 47C agreement is the only relevant s 47C agreement executed by the applicant, and that the agreement is provided ‘with the intent that it is to accompany the Fourth Amended Native Title Determination Application filed pursuant to leave granted by His Honour Justice Murphy on 24 June 2024’. 
[39]	In response, the NSW Supplementary Submissions stated that:
The Attorney General submits that:
(a)	annexure “ESN-1” to the affidavit of Eduard Salomon Neumann should be annexed to [the] fourth amended native title determination application filed 20 June 2024 (the amended application), in accordance with s 62(1)(d) of the NT Act; and
(b)	otherwise, the amended application should be notified for a period of three months in accordance with s 66A(1) of the NT Act.
[40]	I have had regard to Doepel, in which Mansfield J found that an affidavit filed separately in the Court may be considered to ‘accompany’ an application for the purpose of consideration under s 190C(2), notwithstanding that it is not annexed to the application itself. I consider that the affidavit filed on 18 September 2024 accompanies the Fourth Amended Application for the purpose of s 190C(2) and that because it contains a copy of the relevant s 47C agreement, the Fourth Amended Application meets the requirement at s 62(1)(d). 
[41]	Section 62(2)(a) requires that the application contain information that enables the boundaries of the area covered by the amended application and any areas within those boundaries that are not covered by the application to be identified. Schedule B provides information including that the area covered by the Fourth Amended Application as described in Schedule B and Attachment B is subject to s 47C. Having regard to Schedule B, the Neumann September 2024 Affidavit which includes a description of the s 47C agreement area and the determination orders made on 3 July 2024 as amended on 1 October 2024, I am satisfied that the Fourth Amended Application contains the information required by s 62(2)(a).
[42]	Section 62(2)(b) requires that the application include a map showing the boundaries of the area mentioned in s 62(2)(a). Schedule C refers to Attachment C, which contains a map showing the external boundaries of the Wongkumara Claim and a map showing the boundaries of Part B. Having regard to Attachment C, the Neumann September 2024 Affidavit and the determination orders made on 3 July 2024 as amended on 1 October 2024, I am satisfied that the application contains the information required by s 62(2)(b). 
[43]	Section 62(2)(c) requires that the application include details and results of searches of any non-native title rights and interests covered by the application. Schedule D of the Fourth Amended Application states that no searches have been carried out. As no searches have been conducted, s 62(2)(c) is not applicable to the amended application. 
[44]	Section 62(2)(d) requires an application to contain a description of the native title rights claimed in relation to particular land or waters. This description must not consist merely of a statement that the native title rights and interests are all that may exist or have not been extinguished. Schedule E of the Fourth Amended Application contains a description of the native title rights and interests claimed in relation to the land or waters in the application area. I am satisfied that the Fourth Amended Application meets the requirements of s 62(2)(d) because Schedule E contains a description of the claimed rights and interests as required.
[45]	Section 62(2)(e) requires an application to contain a general description of the factual basis on which it is asserted that the native title rights and interests are claimed to exist. Schedule F of the Fourth Amended Application contains a description of the relevant factual basis and further refers to Attachments F (which contains a precis of historical and anthropological material) and F1 to F4 (which contain witness statements from four members of the claim group). As such, I am satisfied that the Fourth Amended Application contains the information required by s 62(2)(e).
[46]	Section 62(2)(f) requires that if the native title claim group currently carry on any activities in relation to the land or waters claimed, details of those activities must be included in the application. Schedule G of the Fourth Amended Application contains a detailed list of activities carried out by the claim group. I am satisfied that the Fourth Amended Application contains the information required by s 62(2)(f).
[47]	Section 62(2)(g) requires an application to include details of any other court applications seeking a determination of native title or native title compensation over any of the area covered by the application. Schedule H of the Fourth Amended Application refers to two previous applications and the Yandruwandha Yawarrawarrka Claim which overlapped Part B at the time the application was made. As such, I am satisfied that the Fourth Amended Application contains the information required by s 62(2)(g). 
[48]	Section 62(2)(ga) requires the application to include details of any s 24MD(6B)(c) notifications relevant to the claim area. Schedule HA of the Fourth Amended Application states that to the best of the applicant’s knowledge no notices under s 24MD(6B)(c) have been given that relate to the application area. As such, I am satisfied that the Fourth Amended Application contains the information required by s 62(2)(g).   
[49]	Section 62(2)(h) requires that the application include details of any s 29 notifications relevant to the claim area of which the applicant is aware. Schedule I states that the applicant is aware of one current notice under s 29 and sets out the detail of that notice. As such, I am satisfied that the Fourth Amended Application contains the information required by s 62(2)(h).
[50]	Section 62(2)(i) requires the application include details of any conditions under s 251BA on the authority of the applicant to make the application and to deal with matters arising in relation to it. There is no material in the Fourth Amended Application that indicates that any conditions were imposed on the applicant under s 251BA. As such, I am satisfied s 62(2)(i) has no application to the Fourth Amended Application. 
Conclusion on s 190C(2)
[51]	As set out above, I am satisfied that the Fourth Amended Application contains all of the details and other information, and is accompanied by any affidavit or other document, as required by ss 61–62, and as such, the condition at s 190C(2) is met.
Section 190C(3): no previous overlapping claim group – condition met 
[52]	The condition at s 190C(3) requires that ‘no person included in the native title claim group for the application … was a member of the native title claim group for any previous application’. Having regard to the the Explanatory Memorandum to the Native Title Amendment Act 1998 (Cth) which inserted this provision, I consider that its purpose is achieved by preventing a claim from being registered if it includes members in common with an overlapping claim that is on the Register at the time the registration test is applied.
[53]	I understand that in assessing this requirement I may have regard to information which does not form part of the application and accompanying documents.
[54]	The condition at s 190C(3) only arises where there is a previous application that meets the criteria set out in subsections (a) to (c). These criteria are that any previous application covers at least some of the same area, was accepted for registration under s 190A and is on the Register.
[55]	As noted above, Schedule H of the Fourth Amended Application refers to the Yandruwandha Yawarrawarrka Claim. Schedule O indicates that there are no overlapping members of the claim group. The Yandruwandha Yawarrawarrka Claim was not accepted for registration and so cannot be considered a ‘previous claim’ within the meaning of s 190C(3). In any event, as a result of the determinations made on 3 July 2024 the overlapping Yandruwandha Yawarrawarrka Claim is now determined. 
[56]	I have reviewed the Geospatial Assessment and conducted my own searches of the Tribunal’s mapping database in relation to the remaining undetermined portion of the Wongkumara Claim (the ‘NSW 47C area’ or ‘NSW Part B determination area’ (the Claim Area)). There is no previous application overlapping any of the Claim Area that meets the criteria set out in s 190C(3)(a)–(c). 
[57]	As there are no previous applications that meet the description of sub-ss (a)–(c), s 190C(3) requires no further consideration. I am satisfied that the Fourth Amended Application does not contravene this requirement.
Section 190C(4): identity of claimed native title holders – condition met
[58]	Section 190C(4) requires that the Registrar be satisfied that either a certificate under s 203BE has been issued by the relevant representative Aboriginal/Torres Strait Islander body, or 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. As set out in the note to s 190C(4)(b), the word ‘authorise’ is defined in s 251B. Schedule R of the Fourth Amended Application indicates that the amended application is not certified. As such I will consider the amended application under s 190C(4)(b). 
[59]	Section 190C(4)(b) requires the Registrar to identify whether:
•	the persons comprising the applicant are members of the native title claim group;
•	the applicant is ‘authorised’ in accordance with the requirements in s 251B; and 
•	that such authorisation was given by ‘all the other persons’ in the native title claim group.
[60]	Having regard to the authorities concerning authorisation of the applicant, I understand that consideration of the provisions at s 190C(4)(b):
•	requires the Registrar to be satisfied ‘of the fact of authorisation by all members of the native title claim group’;
•	requires the Registrar to be satisfied as to the identity of the claimed native title holders, including the applicant;  
•	is not ‘to be met by formulaic statements in or in support of applications’; 
•	does not permit a claim group to choose between the two decision-making processes set out in s 251B, as where there is a traditionally mandated process, that process must be followed to authorise the applicant, and where there is no mandated traditional process, the process must be that which has been agreed and adopted by the native title claim group. 
[61]	Provisions relating to the authorisation of claimant applications were amended by the 2021 Amendment Act. As a consequence, any conditions imposed under s 251BA must also be satisfied. The material indicates that the members of the applicant were authorised at the 2016 Authorisation Meeting, and that the amendments made in the Fourth Amended Application were subsequently authorised by the claim group at the 2024 Authorisation Meeting. As mentioned above at paragraph 34, the material in the Fourth Amended Application indicates that no s 251BA conditions were imposed on the making of the Fourth Amended Application.
Are the persons comprising the applicant members of the claim group?
[62]	The first limb of s 190C(4)(b) requires that ‘the applicant is a member of the native title claim group’. The Applicant Affidavits include a statement that each person authorised is a member of the native title claim group by reference to their particular apical ancestor. These affidavits were deposed prior to the amendment to the claim group description now contained in Schedule A of the Fourth Amended Application.
[63]	Schedule A of the Fourth Amended Application provides that members of the claim group are those persons who are the descendants (including by adoption) of nine listed apical ancestors who are recognised as having a connection in the Claim Area under the traditional laws and customs of the regional society known as the ‘Lakes Group’ and who are recognised and accepted by other Wongkumara People as being native title holders. As noted in the Neumann June 2024 Affidavit contained at Attachment R-2, the amendment to the claim group description did not change any of the apical ancestors. Further, resolution 13 made at the 2024 Authorisation Meeting indicates that the amended claim group description ‘does not change the composition of the Wongkumara claim group or the list of apical ancestors, but makes it clear who Wongkumara People are’. Nevertheless I have considered whether the persons comprising the applicant are members of the claim group set out in Schedule A of the Fourth Amended Application, having regard to the particular amendments made to the claim group description. 
[64]	In relation to the addition of the reference to the ‘Lakes Group’ regional society, I note that the previous claim group description referred to the traditional laws acknowledged and traditional customs observed by the Wongkumara People. In my view the amended description clarifies that these traditional laws and customs are broadly those of the regional ‘Lakes Group’ society. 
[65]	In relation to the amendment that clarifies that the claim group includes persons adopted into Wongkumara families, I note that each of the persons comprising the applicant have deposed to direct biological links to apical ancestors. 
[66]	I also infer that each of the persons comprising the applicant are persons who are recognised and accepted by other Wongkumara People as being native title holders, and I have received no information which would suggest otherwise. 
[67]	Having regard to the above, I am satisfied that each person comprising the applicant is a member of the native title claim group, as amended in the amended application and within the meaning of s 190C(4)(b).
Is the applicant authorised? 
[68]	The second limb of s 190C(4)(b) requires that ‘the applicant … 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’. In my view, the second limb requires consideration of s 251B, which sets out the relevant definition of the word ‘authorise’.
What are the requirements for authorisation?
[69]	As s 251B contains multiple requirements, it is convenient to identify and address each requirement separately:  
•	‘…all the persons in a native title claim group…’
•	‘…authorise … persons to make a native title determination application … and to deal with matters arising in relation to it, if’:
(a)	where there is a traditional decision-making process to be complied with by the native title claim group, that process has been used to authorise the person or persons to make the native title determination application; or
(b)	where there is no traditional decision-making process applicable, the persons in the native title claim group authorise the person or persons to make the application in accordance with a process of decision-making agreed to and adopted by the native title group.
[70]	As regards ‘all the persons in a native title claim group’, Stone J in Lawson commented that ‘the effect of the section is to give the word “all” a more limited meaning’, that it does not require a unanimous vote and that ‘[i]t is sufficient if a decision is made once the members of the claim group are given every reasonable opportunity to participate in the decision-making process’. In considering whether a reasonable opportunity to participate was given, Stone J was prepared to accept, in the absence of contrary evidence, that those who did not participate chose not to be involved in the decision-making process. As such, I understand that I must assess whether all the persons in the native title claim group were provided with an opportunity to attend and participate in the relevant authorisation meetings of 28 and 29 February 2016 and 17 and 18 April 2024.
[71]	Justice Rares held in Weribone that a notice for an authorisation meeting ‘must be sufficient to enable the persons to whom it is addressed … to judge for themselves whether to attend the meeting and vote for or against a proposal’ and that ‘fair notice of the business to be dealt with at the meeting’ must be given.
[72]	As regards ‘…authorise… persons to make a native title determination application… and to deal with matters arising in relation to it’, I must assess whether the application was ‘authorised’ under s 251B. Justice O’Loughlin listed a number of questions in Ward relating to the authorisation process which were required to be addressed. The questions identified by O’Loughlin J, which do not need to be answered in any formal way, but the substance of the questions should be addressed, are:
Who convened it and why was it convened? To whom was notice given and why was it given? What was the agenda for the meeting? Who attended the meeting? What was the authority of those who attended? Who chaired the meeting or otherwise controlled the proceedings of the meeting? By what right did that person have control of the meeting? Was there a list of attendees compiled, and if so by whom and when? Was the list verified by a second person? What resolutions were passed or decisions made? Were they unanimous, and if not, what was the voting for and against a particular resolution? Were there any apologies recorded?
[73]	The Full Court stated in Noble:
Section 251B does not require proof of a system of decision-making beyond proof of the process used to arrive at the particular decision in question. The section accommodates a situation where a native title claim group agrees to follow a particular procedure for a particular decision even if other procedures are normally used for other decisions. Nor does s 251B require a formal agreement to the process adopted for the making of a particular decision. Agreement within the contemplation of s 251B may be proved by the conduct of the parties. There was evidence in this case that the claim group conducted itself at the meeting on the basis that it agreed to a vote by the members of the group to determine the question of authorisation. All persons present voted in favour of the motion. Nobody is recorded as leaving the meeting or refusing to vote or in any other way conducting to indicate dissent from the course adopted. There was thus evidence from the conduct of the claim group on which the primary judge could base his conclusion that the requirements of s 251B were satisfied.
[74]	In Fesl, Logan J considered the meaning and effect of s 251B as dealt with in the above passage from the Full Court in Noble, and stated the following principles distilled from the authorities concerning s 251B:
(a)	the effect of the s 251B is to give the word ‘all’ in, materially, the table which appears below s 61(1) a more limited meaning than it might otherwise have;
(b)	in those cases where there is no relevant traditional decision-making process, s 251B does not mandate any one particular decision-making process, only that it be one that is agreed to and adopted by the persons in the native title claim group or compensation group;
(c)	“agreed to and adopted by” imports the giving to all of those whose whereabouts are known and have capacity to authorise a reasonable opportunity to participate in the adoption of a particular process and the making of decisions pursuant to that process;
(d)	unanimous decision-making is not mandated;
(e)	agreement to a particular process may be proved by the conduct of the parties even in the absence of proof of a formal agreement.
What information has been provided in support of the requirement at s 190C(4)(b): s 190C(5)
[75]	Section 190C(5) provides that the Registrar cannot be satisfied that this condition has been met unless an application includes a statement to the effect that the requirements mentioned in s 190C(4)(b) have been met and briefly sets out the grounds on which the Registrar should be satisfied that these requirements have been met. 
[76]	In Strickland, French J (as his Honour then was) stated that s 190C(5):  
requires no more than a statement that the requirement of authorisation referred to in s 190C(4)(b) has been met. It is also required briefly to set out the grounds on which the Registrar should consider that it has been met. The insertion of the word "briefly" at the beginning of par 190C(5)(b) suggests that the legislature was not concerned to require any detailed explanation of the process by which authorisation is obtained.
[77]	Schedule R of the Fourth Amended Application contains statements that meet the description of s 190C(4)(b). Schedule R then refers to two affidavits at Attachment R deposed by Mr Neumann. The first affidavit relates to the 2016 Authorisation Meeting at which the members of the applicant were authorised and the second affidavit relates to the 2024 Authorisation Meeting at which the s 87A agreement and amendments to the application were authorised. In addition, the Neumann October 2024 Affidavit sets out further detail in relation to the 2024 Authorisation Meeting. I note that the persons comprising the applicant in the amended application are the same persons who were authorised in February 2016. I am satisfied that the material in Schedule R, the affidavits at Attachment R and the Neumann October 2024 contain the statements and brief grounds required by s 190C(5).
[78]	This material includes the following information in relation to the 2016 Authorisation Meeting:
•	notice of the authorisation meeting was published in the Western Herald on 18 February 2016, Courier Mail and Weekend Liberal on 20 February 2016 and Koori Mail on 24 February 2016 and was sent by post to 621 Wongkumara persons with mailing addresses and also to 81 Wongkumara persons by Queensland South Native Title Services (‘QSNTS’) on a database maintained by QSNTS;
•	each notice described the meeting as a ‘whole of Claim Group Authorisation Meeting’ and invited all persons who were members of the claim group as had been previously described, as well as descendants of the apical ancestors in the updated description of the claim group proposed in 2016 (the same apical ancestors as included in Schedule A of the amended application);
•	each notice also set out that the purpose of the meeting included to authorise the applicant, that limited travel assistance was available and that persons wishing to attend could register their attendance;
•	attendees were managed at the meeting through a registration process supervised by the expert historian and genealogist engaged by the claim group and by which each attendee’s identify and descent from an apical ancestor was verified, with an attendance register being kept;
•	attendees were provided with armbands, coloured to distinguish each attendee’s apical ancestor; 
•	the authorisation meeting was attended by a large number (462) of Wongkumara People; 
•	the meeting was chaired by counsel;
•	after members of the previously constituted claim group passed resolutions including to amend the description of the claim group to the nine apical ancestors now listed, a second meeting of the newly constituted claim group was held;
•	the following resolutions were passed by the newly described claim group:
o	sufficient notice was given of the meeting and attendees are all members of the Wongkumara People (descendants of the same apical ancestors listed in Schedule A of the amended application) and are sufficiently representative of the claim group (resolution 1);
o	a decision-making process involving majority vote by show of hands was agreed and adopted (resolution 2);
o	each of the persons comprising the applicant in this amended application was authorised as a member of the applicant (resolutions 3, 5 and 6);
o	the members of the applicant were authorised to make the application and deal with matters arising in relation to it (resolution 7).
[79]	Further to the above, Schedule R of the amended application states that ‘[t]he claim group does not have a decision making process which must be complied with in respect of native title decisions’.
[80]	In addition, the Neumann June 2024 Affidavit contained at Attachment R-2 sets out that at the 2024 Authorisation Meeting, the claim group unanimously authorised the s 87A agreement that was subsequently determined by the Court on 3 July 2024 (the Wongkumara Determination). The amendment to the claim group description in Schedule A accords with that s 87A agreement. Mr Neumann notes that:
The proposed amendments to the Claim Group Description in Schedule A is to add the introductory wording to the claim group description in the manner set out in [the amended application]. In particular there is no change to the list of Apical Ancestors. The proposed amended description is the same as that in the proposed s 87A agreements…
[81]	The introductory wording referred to includes the reference to the ‘Lakes Group’ regional society. As noted above, the claim group description at Schedule A was also amended to confirm that persons who are adopted into Wongkumara families in accordance with traditional laws and customs are also included in the claim group, and that the persons must also be recognised and accepted by other Wongkumara People as being native title holders. Each of the persons comprising the applicant was in attendance at the 2024 Authorisation Meeting, and unanimously agreed with the amendment to the claim group description.
[82]	The Neumann October 2024 Affidavit contains the following further information in relation to the 2024 Authorisation Meeting: 
•	notice of the 2024 Authorisation Meeting was published by way of a notice in the Koori Mail on 13 March 2024 and a supplementary notice in the Koori Mail on 27 March 2024;
•	the 2024 Authorisation Meeting was attended by 150 members of the claim group, with a list of attendees included at Annexure ESN5; 
•	both the notice published on 13 March and the supplementary notice published on 27 March 2024 invited members of the claim group by reference to the description of the claim group as contained in Schedule A of the Fourth Amended Application (including reference to the ‘Lakes Group’, descent by adoption and the requirement for persons to be recognised and accepted by other Wongkumara People as being native title holders);
•	the supplementary notice published on 27 March 2024 stated that the purpose of the authorisation meeting included to authorise the proposed s 47C agreement and amendments to the Wongkumara Claim;
•	the resolutions passed at the 2024 authorisation meeting include the following:
o	there was sufficient notice of the authorisation meeting and the attendees were sufficiently representative of the families who comprise the Wongkumara People to make authoritative decisions (resolution 1);
o	adopting a decision-making process, whereby written resolutions in an agreed form are put to the meeting, votes taken by those over 18 and within family groups, family groups reporting to the whole claim group and a majority of the thirteen family groups being in favour required to pass the resolution (resolution 2);
o	authorising the applicant to enter into the s 47C agreement (resolution 8); and
o	authorising the applicant to seek leave to amend the Form 1, including to amend the description of the claim group as per Schedule A of the Fourth Amended Application, amending Schedule B to include reference to s 47C and amending the claimed rights and interests at Schedule E (resolution 13).
Has the applicant been authorised by all the persons in the native title claim group?
[83]	As noted above, the authorisation meeting at which the members of the applicant were authorised in 2016 occurred prior to changes made to the description of the claim group in 2024. However, I have had regard to resolution 13 of the 2024 Authorisation Meeting, which indicates that the updated description ‘does not change the composition of the claim group or the list of apical ancestors, but makes it clear who the Wongkumara People are’. Having regard to the wording of resolution 13, there does not appear to have been any substantive change to the description of the claim group in 2024.
[84]	I consider that the notice for the 2016 Authorisation Meeting was widely published through both newspapers and letters sent to known Wongkumara People. The meeting notice set out the purpose of the meeting and in my view was sufficient to provide a reasonable opportunity for members of the claim group to participate. A large number of Wongkumara People attended the 2016 authorisation meeting and registrations were appropriately managed, with the identify of attendees as members of the claim group being verified. The meeting was chaired by counsel. The material also confirmed that no mandatory traditional decision-making process was required to be followed, and that a process of decision-making was agreed and adopted. I am satisfied that the material addresses the substance of the questions in Ward. 
[85]	I am also satisfied that the material set out in the Neumann October 2024 Affidavit demonstrates that the applicant was authorised to make the Fourth Amended Application, including over the area now claimed as the ‘NSW 47C area’ or ‘NSW Part B determination area’. Notices for the 2024 Authorisation Meeting were published in a special-interest Aboriginal / Torres Strait Islander newspaper, invited members of the Wongkumara People by reference to the description of the claim group as contained at Schedule A and indicated that the purpose of the meeting was to authorise the s 47C agreement and the amendments to the Form 1. A large number of Wongkumara People attended the 2024 Authorisation Meeting, and the resolutions made indicate that a decision-making process was agreed and adopted, and that both the s 47C agreement and the amendments to the Form 1 were authorised. 
[86]	Having considered the material contained in the Fourth Amended Application as well as the Neumann October 2024 Affidavit, in my view the applicant has been properly authorised to make the Fourth Amended Application within the meaning of s 190C(4)(b).
Conclusion on s 190C(4)
[87]	For the above reasons, I am satisfied that the amended application meets the condition at s 190C(4).
Section 190B: conditions about the merits of the claim – 
conditions met
Section 190B(2): identification of area subject to native title – condition met
[88]	Section 190B(2) requires the Registrar to be satisfied that the written information and map contained in the application are sufficient to identify, with reasonable certainty, the land and waters in relation to which the native title rights and interests are claimed.
[89]	Attachment B of the Fourth Amended Application contains a written description of the application area by reference to the Queensland, New South Wales and South Australia borders, a native title determination, a river and township and geographical coordinates to six decimal places. The description at Attachment B also specifically excludes areas covered by three native title determinations. Schedule B also sets out general exclusions from the area covered by the Fourth Amended Application. 
[90]	Schedule B has been amended to include that the area is subject to s 47C, which has the effect that additional areas are now included in the claim area. Although s 64(1) provides that an amendment to an application must not result in the inclusion of lands and waters that were not originally included, s 64(2A) provides an exemption where the operation of s 47C has been agreed in writing. Having regard to the orders of 14 June 2024, the Wongkumara Determination and the Neumann September 2024 Affidavit, I am satisfied that s 64(2A) applies to the Fourth Amended Application. 
[91]	Attachment C comprises a copy of a colour map prepared by Geospatial Services, titled ‘Amended Wongkumara People native title determination application’ dated 2 May 2022. The map shows the boundary of the claim area depicted by dark blue outline, State borders labelled, topographic background showing roads, waterways and locations, scalebar, coordinate grid and notes relating to the source, currency and datum of data used to prepare the map. The Geospatial Assessment confirms that the application area has not been amended or reduced and does not include any areas that were not previously claimed. As noted above however, the amendments to Schedule B identify that areas subject to s 47C are included in the claim area.
[92]	The Geospatial Assessment concludes that the written description and map contained in the Fourth Amended Application are consistent and identify the claim area with reasonable certainty. As noted above, as a result of the Wongkumara Determination the remaining undetermined portion is the ‘NSW 47C area’ or ‘NSW Part B determination area’. I am satisfied that this area has been described sufficiently for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land and waters. I also note that this area has been described by way of a written description and map in the correspondence provided by the applicant on 21 October 2024. 
[93]	For the above reasons, I am satisfied that the Fourth Amended Application meets the requirements of s 190B(2). 
Section 190B(3): identification of the native title claim group – condition met
[94]	Section 190B(3) requires the Registrar to be satisfied that either the persons in the native title claim group are named in the application, or that persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group.
[95]	When assessing the requirements under s 190B(3), I understand that:
•	I am required to address only the content of the application;
•	‘only … the members of the claim group are required to be identified, not that there be a cogent explanation of the basis upon which they qualify for such identification’;
•	where a claim group description contains a number of paragraphs, the paragraphs should be read ‘as part of one discrete passage, and in such a way as to secure consistency between them, if such an approach is reasonably open’; and
•	to determine whether the conditions or rules specified in the application have a sufficiently clear description of the native title claim group, ‘[i]t may be necessary, on occasions, to engage in some factual inquiry when ascertaining whether any particular person is in the group as described’.
[96]	The description of the native title claim group at Schedule A is as follows:
The native title holders are the “Wongkumara People”. The Wongkumara People are the descendants of ancestors who are recognised as having had a connection to the application area in accordance with the laws and customs of the regional society described by Professor A. P. Elkin as the “Lakes Group” and who are recognised and accepted by other Wongkumara People as being native title holders. Those ancestors include:
1)	Charlotte (mother of Jack, Queenie and May Hines, Rosie Jones and Willy Dutton);
2) 	Siblings Polly (mother of Albert Ebsworth, Sam and Tommy Burgamar) and Charlie Nockatunga;
3) 	Maggie and Tommy (parents of Nellie Flash and Angelina);
4) 	Kutji (mother of George Dutton);
5) 	Tarella and her children Elizabeth and Harry (Fred) Hartnett;
6) 	Norman Harding;
7) 	Siblings Nellie (mother of Lucy Harding) and Judy (mother of Donald David Gillis);
8) 	Jenny (mother of Alf Barlow); and
9) 	Neddie and Nancy (grandparents of Jimmy Sedeek).
The Wongkumara People also include persons who are adopted into the families of the Wongkumara People in accordance with traditional laws and customs, and who are recognised and accepted by other Wongkumara People as being native title holders.
[97]	As this description does not name all the persons in the native title claim group, I must consider whether it is sufficiently clear within the meaning of s 190B(3)(b). I note that the description at Schedule A of the Fourth Amended Application is largely identical to that contained in the Wongkumara Determination.
[98]	In relation to identifying members of the claim group by descent from named persons, I note that this has been accepted by the Court as satisfying the requirements of s 190B(3)(b). In my view, requiring a member to show descent from an identified ancestor provides a clear starting or external reference point and that with some factual inquiry it will be possible to identify the persons who fit this part of the description of the native title claim group.
[99]	In relation to the requirement in the claim group description for recognition and acceptance ‘by other Wongkumara People as being native title holders’, I note that group acceptance has been previously held by the Court as ‘inherent in the nature of a society’. In Sampi FC, the Full Court noted that: 
in determining whether a group constitutes a society in the Yorta Yorta sense is the internal view of the members of the group – the emic view. The unity among members of the group required by Yorta Yorta means that they must identify as people who are bound by the one set of laws and customs or normative system.
[100]	I consider that this element of the claim group description involves recognition by reference to the traditional laws and customs of the Wongkumara People as part of the ‘Lakes Group’ regional society. The traditional laws and customs of the claim group are set out in the Fourth Amended Application and have been recognised in the Wongkumara Determination. 
[101]	In relation to membership of the claim group through adoption, I note that in WA v NTR, Carr J accepted a description which included ‘persons adopted by the named people and by the biological descendants of the named people’ without any qualification indicating whether the adoption was according to traditional laws and customs or otherwise. Schedule A indicates that membership through adoption is under the claim group’s traditional laws and customs. In my view, it is the traditional laws and customs that provide the relevant rules or principles for ascertaining whether a person is included in the Wongkumara claim group description through adoption. Such persons must also be recognised and accepted by other Wongkumara People.
[102]	As such, I am satisfied that the description of the claim group is sufficiently clear such that it can be ascertained whether a particular person is a member of the claim group as required by s 190B(3). This condition is met.
Section 190B(4): identification of claimed native title – condition met
[103]	Section 190B(4) requires the Registrar to 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. I understand that I am confined to the material contained in the application itself in considering this condition.
[104]	Justice Mansfield noted in Doepel that the ‘test of identifiability’ for the purpose of this condition is whether the description of the native title rights and interests is understandable, has meaning and is without contradiction. It is also open to the Registrar to read the contents of the claimed rights and interests together with any stated qualifications or restrictions. A description of a native title right or interest that is broadly asserted ‘does not mean that the rights broadly described cannot readily be identified within the meaning of s 190B(4)’.
[105]	The claimed rights and interests are set out in Schedule E as follows:
1. 	Subject to paragraphs 3, 4 and 5 below, over areas where a claim to exclusive possession can be recognised (such as where there has been no prior extinguishment of native title or where s.238, s.47, s.47A or s.47B or s47C apply, the Wongkumara People claim:
(a) 	Other than in relation to Water, the right to possession, occupation, use and enjoyment of the areas to the exclusion of all others; and
(b) 	In relation to Water, the non-exclusive right to:
(i) 	hunt, fish and gather from the Water of the areas;
(ii) 	take the Natural Resources of the Water in the areas; and 
(iii) 	take the Water of the areas subject to the operation and vesting effect of State Water Legislation.
2. 	Subject to paragraphs 3, 4 and 5 below over areas where a claim to exclusive possession cannot be recognised the Wongkumara People claim the following non-exclusive rights to:
(a) 	access, be present on, move about on and travel over the area;
(b) 	live, to camp and, for the purposes of exercising the native title rights and interests, erect shelters and other structures;
(c) 	hunt, fish and gather on the land and waters of the area; 
(d) 	take the Natural Resources from the land and waters of the area;
(e) 	take the Water of the area subject to the operation of and any vesting effect of the Water Act 1912 (NSW) and the Water Management Act 2000 (NSW);
(f) 	conduct rituals ceremonies and other religious spiritual and cultural activities on the area;
(g) 	hold meetings on the area;
(h) 	conduct mortuary related rituals including the burial of native title holders within the area;
(i) 	maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas from harm;
(j) 	teach on the area the physical and spiritual attributes of the area and sites and the traditional laws and customs on the area and protect those places and areas from harm;
(k) 	light fires on the area for cultural, spiritual or domestic purposes including cooking but not the purpose of hunting or clearing vegetation;
(l) 	be accompanied on the area by those persons who, though not native title holders, are:
(i) 	spouses or partners of native title holders;
(ii) 	people who are members of the immediate family of a spouse or partner of a native title holder; or
(iii) 	people reasonably required by the native title holders under traditional law and custom including for the performance of ceremonies or cultural activities on the area.
[106]	Paragraph 3 of Schedule E confirms that the claimed rights and interests are subject to and exercisable in accordance with the laws of the State of New South Wales and the Commonwealth and the traditional laws and customs of the Wongkumara People. Paragraph 4 notes that paragraph 1(b) does not confer exclusive rights. Paragraph 5 confirms that there are no rights claimed in relation to minerals or petroleum, and paragraph 6 notes that there are rights and interests also held by the Yandruwandha Yawarrawarrka People over the area now covered by the Yandruwandha Yawarrawarrka Determination. 
[107]	I note that these claimed rights and interests are substantially the same as those recognised in the Wongkumara Determination, although only the non-exclusive rights were recognised in the Queensland Part B area as that is the area overlapped with the Yandruwandha Yawarrawarrka People.
[108]	In my view, the native title rights and interests described in Schedule E of the Fourth Amended Application are understandable and have meaning. I do not consider there to be any inherent contradictions. As such I am satisfied that the requirements of s 190B(4) are met. 
[109]	I note that I consider below whether the factual basis material is sufficient to establish the existence of these claimed rights and interests on a prima facie basis under s 190B(6).
Section 190B(5): factual basis for claimed native title – condition met
[110]	Section 190B(5) requires the Registrar to be satisfied that the factual basis for the claimed native title rights and interests is sufficient to 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 interests; and
(c)	that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.   
[111]	Justice Mansfield stated in Doepel that the task under s 190B(5):
requires the Registrar to address the quality of the asserted factual basis for those claimed rights and interests; but only in the sense of ensuring that, if they are true, they can support the existence of those claimed rights and interests… The role is not to test whether the asserted facts will or may be proved at the hearing, or to assess the strength of the evidence which may ultimately be adduced to establish the asserted facts.
[112]	As such, when assessing the requirements of this condition, I understand that I must treat the asserted facts as true and assess whether they are sufficient to support each of the relevant assertions. 
[113]	The guidance provided by the Full Court in Gudjala FC in respect of the details required under s 62(2)(e)(i) to (iii) ‘general description of the factual basis on which it is asserted that the native title rights and interests claimed exist…’ is also relevant to the task under s 190B(5):
The fact that the detail specified by s 62(2)(e) is described as “a general description of the factual basis” is an important indicator of the nature and quality of the information required by s 62. In other words, it is only necessary for an applicant to give a general description of the factual basis of the claim and to provide evidence in the affidavit that the applicant believes the statements in that general description are true. Of course the general description must be in sufficient detail to enable a genuine assessment of the application by the Registrar under s 190A and related sections, and be something more than assertions at a high level of generality. But what the applicant is not required to do is to provide anything more than a general description of the factual basis on which the application is based. In particular, the applicant is not required to provide evidence of the type which, if furnished in subsequent proceedings, would be required to prove all matters needed to make out the claim. The applicant is not required to provide evidence that proves directly or by inference the facts necessary to establish the claim.
[114]	In Gudjala 2009, Dowsett J further clarified the task under s 190B(5) as follows:
In assessing the adequacy of a general description of the factual basis of the claim, one must be careful not to treat, as a description of that factual basis, a statement which is really only an alternative way of expressing the claim or some part thereof. In my view it would not be sufficient for an applicant to assert that the claim group’s relevant laws and customs are traditional because they are derived from the laws and customs of a pre-sovereignty society, from which the claim group also claims to be descended, without any factual details concerning the pre-sovereignty society and its laws and customs relating to land and waters. Such an assertion would merely restate the claim. There must be at least an outline of the facts of the case.
[115]	From the above, it is my understanding that although the material provided by the applicant need not provide evidence to make out each claim, it must nevertheless provide sufficient factual details to enable a ‘genuine assessment’ of the factual basis for the assertions set out in ss 190B(5)(a) to (c) and at a minimum provide ‘an outline of the facts of the case’.
[116]	The factual basis material is contained in Schedule F, the precis of historical and anthropological material at Attachment F (‘Precis’) and the affidavits of members of the claim group at Attachment F1 to F4 (‘Claim Group Affidavits’). The material has remained unchanged since the amended application filed on 12 September 2016, which was accepted for registration and so was considered to be sufficient to meet the requirements of s 190B(5). I have considered this material afresh and have set out my consideration under each of the assertions at s 190B(5)(a) to (c) in turn below. Given that the remaining undetermined area is the ‘NSW 47C area’ or ‘NSW Part B determination area’ (the land and waters in the northwest of New South Wales), I have set out below the factual basis material that is generally relevant to that area. 
Section 190B(5)(a): the association of the native title claim group and their predecessors with the area
[117]	Section 190B(5)(a) was recently considered by Reeves J in McLennan. His Honour set out the relevant principles as follows: 
To satisfy the condition in s 190B(5)(a) of the [Act], it will be sufficient if the applicant demonstrates that:
(a)	“the claim group presently has an association with the area, and the claim group’s predecessors have had an association with the area since sovereignty or European settlement” [Gudjala 2007 [52]];
(b)	“there is an association between the whole group and the area, although not all members must have such association at all times” [Gudjala 2007 [52]]; and
(c)	“there is an association with the entire area claimed, rather than an association with only part of it or ‘very broad statements’, which have no ‘geographical particularity’” [Martin [26] and Corunna [39]].  
[118]	In addition, I note the comments of Dowsett J in Gudjala 2007 that s 190B(5)(a) requires sufficient factual material to support the assertion that the identified claim group (and not some other group) hold the identified rights and interests (and not some other rights and interests)’.
What material has been provided in support of the assertion at s 190B(5)(a)? 
[119]	One member of the claim group describes being taught that the rivers and other natural features of the Wongkumara Country were created during the Dreamtime by the ancestors, as well as the Wongkumara People and all the animals and plants on which they lived. 
[120]	Schedule F refers to the nine apical ancestors listed in Schedule A and states that 
[e]ach of these apical ancestors had a traditional connection to the claim area through their own descent from Wongkumara forebears reaching back to long before the arrival in their area of Europeans. Through these ancestors the association with and connection of Wongkumara People to the claim area since time immemorial.
[121]	The long history of Aboriginal occupation in the claim area is supported by archaeological evidence, including ‘artefacts, fragments, and traditional occupancy sites’, some of which date back many thousands of years.
[122]	Following the assertion of sovereignty in 1788, a number of colonial expeditions occurred through the area, including those of Charles Sturt in 1845 and Burke and Wills in 1860. These explorers recorded encounters with Aboriginal people in the area, indicating a ‘vigorous society and culture’. Following this, Europeans came into the area, with pastoralists, government officials and early ethnographers recording information about the Aboriginal people. Some of this information is recorded in the Precis at Attachment F, demonstrating the ‘long and early occupation of the region’. The Precis also describes how the ‘language and territorial group named Wongkumara has been located in southwest Queensland and northwest NSW since the first ethnographic records were published in 1886’.
[123]	The historical material demonstrates that through the early disruption caused by European expansion into the area, many Wongkumara People were able to remain on their traditional country, including at Tibooburra. In 1938, 130 Wongkumara People were forcibly removed from Tibooburra to the Brewarrina Aboriginal settlement, some of whom subsequently left seeking to return to Wongkumara homeland. Despite this, Wongkumara People have always been able to maintain a connection with their traditional country, including through employment in the pastoral industry.
[124]	The Claim Group Affidavits contained at Attachment F describe the association of those members of the claim group and their predecessors with the Claim Area. This includes material demonstrating direct genealogical links to particular apical ancestors and information about those ancestors. An example of this is that members of the claim group describe apical ancestor Rosie Jones speaking Wongkumara and ‘singing in lingo’, and talking about customs relating to traditional burials and wanting to be buried on country. Each of the Applicant Affidavits also demonstrate direct genealogical links with the apical ancestors listed in Schedule A.
[125]	A further example of the association of the predecessors of the claim group is that one member of the claim group describes being taken around Wongkumara Country in northwestern New South Wales by his father during school holidays, and that ‘we camped outdoors and hunted wild animals, caught fish and gathered native foods for our meals. We lived much the way my father told me our ancestors had lived’. Another member of the claim group describes being told by her grandmother about learning how to find food on the land, including around Tibooburra, and about how her grandmother was taken from Tibooburra. 
[126]	The Claim Group Affidavits also demonstrate that current members of the claim group maintain as association with the Claim Area. For example, one claim group member describes camping near Tibooburra, around Thomson’s Creek and going on Country around Tibooburra to teach younger generations of Wongkumara People and their traditional laws and customs. 
[127]	One of the members of the applicant, Ms Iona Dawn Smith, states that she has been on Country many times since she was young, and has been to most of the Wongkumara People’s important and sacred places. Ms Smith also describes how
[o]ut on country it feels good – it feels good to be out on the land. When you get out there and see how the old people used to roam free on our Country with fresh air – it is so peaceful! … I think when people that hear or see things out on country they are the ones that the old people want this to happen too, not to scare them, but to let them know the older people are with them.
Consideration of the assertion at s 190B(5)(a)
[128]	From the above information, I consider that the factual basis material is sufficient to enable a ‘genuine assessment’ of the factual basis for the assertions that members of the claim group have an ongoing association with the Claim Area. I have also had regard to the existing Wongkumara Determination and the background of the claim as set out at paragraph 1.
[129]	In my view, the factual basis material provides sufficient geographical particularity to support the assertion of an association between the whole group and the remaining undetermined portion of the Wongkumara Claim since sovereignty. In particular, I note that the material sets out the strong association with the claim group and their predecessors with Tibooburra and nearby areas, which are within or in the vicinity of the Claim Area. As such, I am satisfied that the factual basis material is sufficient to support the assertion at s 190B(5)(a).
Section 190B(5)(b): traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the native title rights and interests
[130]	Section 190B(5)(b) requires the factual basis material to be sufficient to support the assertion of the existence of the traditional laws and customs giving rise to the native title rights and interests claimed. The definition of ‘native title rights and interests’ in s 223(1)(a) provides that those rights and interests must be ‘possessed under the traditional laws acknowledged by, and traditional customs observed’ by the native title holders. 
[131]	In Yorta Yorta, the High Court observed that laws and customs are ‘traditional’ where:
•	‘the origins and content of the law or custom concerned are to be found in the normative rules’ of a society that existed prior to the assertion of British sovereignty, where the society consists of a body of persons united in and by their acknowledgement and observance of a body of laws and customs; 
•	the normative system under which those traditional rights and interests are possessed is one which ‘has had a continuous existence and vitality since sovereignty’;
•	the laws and customs have been passed from generation to generation, and must be rooted in the traditional laws and customs that existed pre-sovereignty;
•	those laws and customs have been acknowledged and observed without substantial interruption since sovereignty.
[132]	Justice Dowsett discussed some of the factors that may guide the Registrar in assessing the factual basis in Gudjala 2009, including that: 
•	it is necessary for the factual basis material to identify the relevant pre-sovereignty society of persons who acknowledged and observed the laws and customs;
•	where the basis for membership of the claim group is descent from named ancestors, the factual basis material must demonstrate some relationship between the ancestors and the pre-sovereignty society from which the laws and customs are derived; and 
•	the factual basis material must provide an explanation, beyond a mere assertion, of how the current laws and customs of the claim group are traditional and derived from the pre-sovereignty society.
[133]	I also note the observations of the Full Court in Warrie, that although
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’, the Act 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.
What material has been provided to support the assertion at s 190B(5)(b)?
[134]	The existence of the traditional laws and customs of the Wongkumara People has been recognised in the Wongkumara Determination. The Wongkumara Determination referred to the expert evidence in relation to the ‘Lakes Group’ regional society, including the following:
(a)	the Lakes Group included the persons who are the Wongkumara apical ancestors and their descendants;
(b)	the traditional laws and customs of the Lakes Group society were acknowledged and observed by Wongkumara society. Through membership of this group the Wongkumara People acquired rights and interests in land through patrifilial and matrifilial spiritual connections to sites and tracts within the Wongkumara claim area. Rights acquired through patrifiliation were transmissible through successive generations of men. Rights acquired through matrifiliation, being the rights inherited by a woman’s children from her, were normally not transmissible beyond her children as the first descending generation. The system of traditional land tenure allowed for exceptions; and
(c)	since sovereignty succeeding generations of the Wongkumara People have continued to acknowledge and observe traditional laws and customs albeit with significant permissible adaptations and changes. While there has been loss of complexity, for example in relation to the moiety system and male initiation, and other elements have perforce been simplified, including knowledge of mura tracks and sites, rights in country continue to be inherited by succeeding generations on the basis of cognatic descent (being from either male or female forebears).
[135]	The factual basis material in the amended application contains significant detail relating to these traditional laws and customs. Schedule F refers to the kinship system (including recognition of common ancestors, patterns of descent and familial ties which determine rights and interests and responsibilities for lands and waters, laws relating to land tenure (including spiritual obligations and observance of restrictions relating to sites of significance) and traditional usage of land and waters.
[136]	The Precis contained at Attachment F demonstrates that the traditional laws and customs of the Wongkumara People are reported in the research literature as well as historical and archaeological records. This includes belief in the Mura, which is described in the Precis as follows:
The Wongkumara today use the term Mura in the customary several senses: as a general term for all things sacred, including Ancestral Beings, and also for all matters associated with these “creators” – their tracks, deposits, rituals, ritual paraphernalia, sites, songs and ceremonies.
[137]	Current members of the claim group describe the importance of maintaining significant sites, beliefs about the creation of Wongkumara Country and the Mura stories. The spiritual beliefs of the Wongkumara People are further detailed in the Precis, demonstrating the link between the spiritual creative beings who provide the ‘pattern of life and laws of the Wongkumara people’ and the physical features of the landscape. The material in the Claim Group Affidavits describes these spiritual beliefs in detail, including Dreamtime stories relating to sites of importance within and in the vicinity of the Claim Area such as the ‘White Lady’ story, to the southwest of Tibooburra and the ‘Three Brothers’ story north of Tibooburra. The importance of these stories is also demonstrated in the Claim Group Affidavits, with one member of the claim group noting how the spirits of his ancestors on Wongkumara Country ‘make me feel that I am responsible for looking after the country, not just the sites but whole of the country’.
[138]	The Claim Group Affidavits also provide information relating to particular laws and customs. For example, one member of the claim group describes burial rituals, including a period of mourning during which a particular song is sung, and a smoking ceremony using branches from the kuriwarra bush to drive the spirits away. 
[139]	One member of the claim group describes the traditional laws and customs relating to the use of the natural resources as follows:
People should take only as much as they need to live. They should not kill animals or fish for the sake of killing, or take crops if they are not going to eat them. They should not take more food than they need and take it elsewhere. That applies as much to the Wongkumara people as it does to everyone else.
[140]	Claim group members also described ceremonies such as corroborees held to celebrate initiation, marriage, with other groups following trading, rain following a drought or just to teach children the traditional dances. 
[141]	Members of the claim group also described learning about traditional laws and customs from the Elders, for example: 
By watching and listening to my grandparents and the other Elders I learned a lot about the customs and ways of our people. For example you are not allowed to call people by their names; rather we referred to each other as “sister,” “brother” or for older people “aunty” and “uncle”. ... I also remember the Elders used to love to sing their tribal songs I would try and sing with them even though I didn’t always know what they were singing about.
Consideration of the assertion at s 190B(5)(b)
[142]	I am satisfied that the material outlined above is sufficient to enable a genuine assessment of whether there exist traditional laws acknowledged and customs observed by the Wongkumara People that give rise to the claim to native title rights and interests. 
[143]	The traditional laws and customs of the Wongkumara People have been recognised in the Wongkumara Determination, and the factual basis material contained in the Fourth Amended Application demonstrates these traditional laws and customs with specific reference to the Claim Area, for example through stories relating to particular sites near Tibooburra. I consider that the material is sufficiently to support the assertion that the traditional laws acknowledged and customs observed by the Wongkumara People give rise to the claimed native title rights and interests in the Claim Area. 
[144]	Having regard to the information above, I am satisfied that the factual basis material is sufficient to support the assertion at s 190B(5)(b). 
Section 190B(5)(c): the native title claim group have continued to hold the native title in accordance with those traditional laws and customs
[145]	Section 190B(5)(c) requires the factual basis material to be sufficient to support the assertion that the native title claim group continues to hold native title in accordance with traditional laws and customs. The traditional laws and customs referred to in s 190B(5)(c) are those referred to under s 190B(5)(b).  
[146]	I understand that continuity may be inferred where there is ‘[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’. 
What material has been provided in support of the assertion at s 190B(5)(c)?
[147]	The factual basis material contains information relevant to this assertion, including the Precis contained at Attachment F, which states as follows:
The members of the native title claim group are the contemporary generation of Aboriginal people whose ancestors were Wongkumara. Under Aboriginal law those persons are the traditional owners of the area covered by the application on the basis of their descent from Wongkumara ancestors who owned and occupied the claim area at the time of sovereignty. They and their ancestors have been associated with the area since time immemorial and continuity of association can be demonstrated through oral, archival and anthropological evidence from the time of contact through the generations to the present day. Current members of the claim group collectively assert their rights to Wongkumara country on the basis that it was the land of their parents, their grandparents and their great-grandparents.
[148]	The Claim Group Affidavits contained at Attachment F provide many examples of the traditional laws and customs being passed down from generation to generation. An example of this from one claim group member is going onto the Claim Area with his father, living the way their traditional ancestors had lived, and that his father ‘taught me to catch freshwater fish, to hunt native animals, which bush foods to gather, how to prepare them, and about bush medicines’. Similarly, another member of the claim group describes how her grandmother taught her to survive in the bush and was told that this ‘was the same for Wongkumara country, particularly around Tibooburra and up to the border’. Ms Smith states that ‘[a]ll my children know that they are Wongkumara and about Wongkumara Stories and Traditions, which they are passing on to their children’.
[149]	Another member of the claim group describes that
One of the main things I do when I go out on country now is to teach the Wongkumara people's traditional laws and customs and knowledge to younger Wongkumara. … As well as teaching them in schools, I have taken the young people out on bush trips to teach them about the sites and stories and to pass on knowledge about how to survive.
[150]	Members of the claim group have arranged for large groups of young Wongkumara people to be ‘taken to different parts of our Country and different sites where Wongkumara Elders speak of the significant of these various places, Wongkumara beliefs about the creation of our Country and our special stories, Mura’.
[151]	Further, I note that in the Wongkumara Determination, the Court recognised that 
despite massacres of Wongkumara people perpetrated by colonists eager to take over their land, despite the dispossession and systematic removal of Wongkumara people from their country, and despite the forced dispersal of the Wongkumara People, they have managed to maintain their culture and a deep and enduring connection to their country.
Consideration of the assertion at s 190B(5)(c)
[152]	In my view, the factual basis material contains sufficient detail relating to the transmission of traditional laws and customs from generation to generation to enable a genuine assessment of the extent to which the Wongkumara People have continued to hold the native title in accordance with those traditional laws and customs. The material contains detail relating to the genealogical links from current members of the claim group to their predecessors, including the apical ancestors. The material also provides information about the traditional laws and customs both at sovereignty and as currently observed by the Wongkumara People and many examples of the transmission of traditional laws and customs to younger generations. The factual basis material strongly demonstrates the importance to the Wongkumara People of passing down and maintaining their laws and customs. 
[153]	Having regard to the information above, including the information set out above with respect to this condition and the conditions at ss 190B(5)(a) and (b), I am satisfied that the factual basis material is sufficient to support the assertion at s 190B(5)(c).
Section 190B(6): prima facie case – condition met
[154]	Section 190B(6) requires the Registrar to consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established.
[155]	I understand that I may consider material additional to the application for the purpose of my assessment of this condition. Because a ‘more onerous test [is] to be applied to the individual rights and interests claimed’ than under s 190B(5), I consider that the task involves some weighing of the factual basis for the claimed rights and interests. It follows that a claimed native title right and interest can be prima facie established if the factual basis is sufficient to demonstrate that it is possessed pursuant to the traditional laws and customs of the native title claim group.
[156]	In Gudjala 2007, Dowsett J indicated that s 190B(6) is to be considered having regard to the definition of ‘native title rights and interests’ in s 223(1). As such, I must consider whether, on a prima facie basis, the claimed native title rights and interests:
•	exist under traditional laws and customs 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; and 
•	have not been extinguished over the whole of the application area. 
[157]	In Ward HC, Kirby J observed that ‘for a native title right to be recognised under the [Act], the critical threshold question is whether it is a right or interest “in relation to” land or waters’. The term “in relation to” is here to be given a ‘wide import’.
[158]	The claimed native title rights and interests are set out at paragraph 105 above, and as noted at paragraph 107, with the exception of exclusive rights and interests in the the Queensland Part B / Yandruwandha Yawarrawarrka area, each of these were recognised in the Wongkumara Determination. I consider that each of these claimed rights and interests are in relation to land or waters.
[159]	I have set out my consideration under s 190B(6) of each of the claimed exclusive and non-exclusive rights and interests below.
Exclusive rights to possession, occupation, use and enjoyment of the lands and waters
[160]	Paragraph 1 of Schedule E sets out that over areas where such a claim can be recognised, the Wongkumara People claim ‘the right to possession, occupation, use and enjoyment of the areas to the exclusion of all others’, except in relation to water.
[161]	I note the comments of the High Court in Ward HC, that exclusive rights are ‘the rights under traditional law and custom to be asked permission and to “speak for country” that are expressed in common law terms as a right to possess, occupy, use and enjoy land to the exclusion of all others’.
[162]	In Griffiths, the Full Court held that:
It is not necessary to a finding of exclusivity in possession, use and occupation, that the native title claim group should assert a right to bar entry to their country on the basis that it is “their country”. If control of access to country flows from spiritual necessity because of the harm that ‘the country’ will inflict upon unauthorised entry, that control can nevertheless support a characterisation of the native title rights and interests as exclusive. The relationship to country is essentially a ‘spiritual affair’. It is also important to bear in mind that traditional law and custom, so far as it bore upon relationships with persons outside the relevant community at the time of sovereignty, would have been framed by reference to relations with indigenous people. The question of exclusivity depends upon the ability of the [native title holders] effectively to exclude from their country people not of their community. If, according to their traditional law and custom, spiritual sanctions are visited upon unauthorised entry and if they are the gatekeepers for the purpose of preventing such harm and avoiding injury to the country, then they have … an exclusive right of possession, use and occupation. 
[163]	In Sampi, French J (as his Honour then was) noted that:
The right to possess and occupy as against the whole world carries with it the right to make decisions about access to and use of the land by others. The right to speak for the land and to make decisions about its use and enjoyment by others is also subsumed in that global right of exclusive occupation.
[164]	The factual basis material contains information that supports the claimed exclusive rights. The Precis contained at Attachment F states as follows:
13.1. 	Contemporary Wongkumara people consider that physical, psychological and spiritual consequences will attend those persons who enter certain areas on Wongkumara country without permission or who disturb sites of significance. 
13.2. 	These are sacred areas. No-one except those who have knowledge are allowed into them. No-one else should go in. They will get sick if they do. 
[165]	The Precis also refers to social sanctions relating to sites, that only Wongkumara People can ‘walk’ Wongkumara land and that previously a person who violated this could be speared. The Claim Group Affidavits at Attachment F support this with examples of the importance of protecting sites. This is strongly conveyed in the following passage: 
I would be disturbed and distressed if any Wangkumara people or any other person interfered with or damaged any of the sites on my country. I would stop them. Wangkumara people know that it is wrong, against our traditional law, to interfere with any of our sites. If any tried to, l would stop them. If they damaged it, the elders and I would punish them. It is the responsibility of Wangkumara people, handed down from our ancestors, to protect all our sites from interference by others. It is the responsibility of the elders to make sure Wangkumara stick by this law. 
[166]	One member of the claim group describes that ‘[i]f I want to take a stranger out on to Wangkumara country, I always get permission from one or two of the elders’. Another example is that persons who are not Wongkumara should ask permission to hunt or fish on the Claim Area, and that ‘[w]hen we give them permission we will tell them where they can go’.
[167]	In addition, I note that the Precis refers to the efforts of Wongkumara People ‘to control the access of others to parts of the land and to control the use and enjoyment of others of known resources in their land’. 
[168]	As noted above, except in relation to the Yandruwandha Yawarrawarrka area, exclusive rights were recognised in the Wongkumara Determination. 
[169]	Having regard to the above, I am satisfied that the factual basis material demonstrates that the claimed exclusive rights and interests can be prima facie established within the meaning of s 190B(6), and should be entered on the Register in accordance with s 186(1)(g).
Non-exclusive rights and interests 
[170]	Paragraph 1 of Schedule E claims non-exclusive rights in relation to water and paragraph 2 lists other claimed non-exclusive rights. Each of the non-exclusive rights and interests were recognised in the Wongkumara Determination, and having reviewed the factual basis material contained in the amended application I consider that the material is sufficient to establish each of these on a prima facie basis for the purpose of s 190B(6). I have set out below examples of some of the material in the amended application in relation to the claimed rights and interests.
[171]	In relation to water, the Wongkumara People claim the right to hunt, fish and gather, and to take the natural resources of the water. I have set out some of this material below generally in relation to the claimed rights to hunt, fish and gather on the lands and waters. 
[172]	In relation to the claimed rights to access, be present on, move about and travel over the area, I refer to the material considered above at paragraphs 125 to 127 in relation to the condition at s 190B(5). In addition, the Claim Group Affidavits contain examples of the use of shelters, for example one claim group member describes that ‘Gunyas were used for shelter at the camp sites. They were made out of wood and leaves, and in wet times kangaroo skins were used to keep out the rain’. In my view the factual basis material contains many examples of members of the claim group accessing the Claim Area, including to camp and build shelters. 
[173]	In relation to the claimed rights to hunt, fish and gather, and to take the natural resources and water of the area, members of the claim group described hunting for kangaroo, emu, porcupines and fishing for yellow belly and yabbying, and taking natural resources such as quondong. 
[174]	In addition, members of the claim group also describe using bush medicine in the Claim Area, such as the ‘Dog Bush’:
In Tibooburra we lived out of the town and there I would show my kids and other kids where to find the Dog Bush if a little one had too many mosquito bites. I would boil the dog bush and put it on, or you could let them sit in it for a couple of hours. I remember my great granddaughter had all sandflies and mosquito bites and they were all infected I had a couple of bottles ready and I put it in a bath and they dried up real quick.
[175]	In relation to the claimed rights to conduct rituals, ceremonies and spiritual and cultural activities, one member of the claim group described holding corroborees on Wongkumara Country. I consider that the claimed rights in relation to mortuary practices are subsumed within this claimed right and note that one of the members of the claim group describes these rituals in detail. 
[176]	In relation to the claimed rights to hold meetings on the area, one member of the claim group referred to holding meetings to discuss the protection of Wongkumara Country from mining operations.
[177]	In relation to the claimed rights maintain places of importance and areas of significance and protect them from harm, I refer to the material set out above in relation to the condition at s 190B(5), in particular at paragraph 137, as well as in relation to the claimed exclusive rights and interests at paragraph 165. In my view the factual basis material contains strong examples of the importance to Wongkumara People of maintaining significant sites and protecting them from harm. In my view, this is clearly demonstrated as being linked inextricably to the traditional laws and customs of the Wongkumara People, as demonstrated in the following statement from a member of the claim group:
When I visit these sites, or any others such sites in our country, I feel the presence of my ancestors’ spirits there in the country, they are looking out for me, and I feel at peace.
My father told me to look after and protect these sites from interference. I feel responsible for these sites. I would never harm them myself and I would never allow any other Wangkumara person to harm them. They would be punished if they did.
[178]	In relation to the claimed rights to teach on the area the physical and spiritual attributes of the area, I refer to the material set out above in relation to the condition at s 190B(5)(c) at paragraphs 148 to 150. This material demonstrates that the Wongkumara People make a concerted effort to teach the younger generations about their traditional laws and customs on Wongkumara Country. 
[179]	In relation to the claimed rights relating to lighting fires, one member of the claim group described traditional cooking methods, as follows:
the men would hunt emus and kangaroos, and cook them and cut up the meat. To cook the emu and kangaroo, they would dig a hole and put gum leaves in it then put in the kangaroo or the emu, and put gum leaves on top, then a sheet of tin on top and then light the fire on top and this worked like an oven. The gum leaves gave the meat a good taste. 
[180]	In relation to the claimed rights to be accompanied onto the area by others, the Precis notes that Wongkumara People have been involved in cultural heritage and resource management projects, site surveys, route clearance and monitoring and liaise with property owners and government officials. This is also evident from the Claim Group Affidavits. The Precis also refers to trade with other Aboriginal groups. I infer that these practices would be likely to involve accompanying others who are not Wongkumara People onto the Claim Area. 
[181]	In my view, the material set out above demonstrates that each of the claim non-exclusive rights and interests is rooted in the traditional laws and customs of the Wongkumara People that existed at sovereignty. I consider that the material set out above is sufficient to demonstrate that each of the claimed non-exclusive native title rights can be prima facie established, and so should be entered on the Register in accordance with s 186(1)(g).
Conclusion on s 190B(6)
[182]	Having regard to the above, I am satisfied that the requirements of s 190B(6) are met in respect of the each of the claimed exclusive and non-exclusive rights and interests set out at Schedule E of the Fourth Amended Application. This condition is met.
Section 190B(7): traditional physical connection – condition met
[183]	Section 190B(7) requires the Registrar to be satisfied that at least one member of the native title claim group currently has or previously had a traditional physical connection with any part of the land or waters covered by the application, or previously had and would reasonably be expected to currently have a traditional physical connection with any part of the land or waters, but for certain things done. 
[184]	Justice Dowsett observed in Gudjala 2009 that the traditional physical connection under s 190B(7) ‘must be in exercise of a right or interest in land or waters held pursuant to traditional laws and customs’.  ‘Traditional’ as that term is used under s 223 of the Act, was considered by the members of the joint judgment in Yorta Yorta who noted that:
the 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.
[185]	In Doepel, Mansfield J stated that the task of the Registrar under s 190B(7), requires ‘some measure of substantive (as distinct from procedural) quality control upon the application, if it is to be accepted for registration’. 
[186]	Having regard to this, I understand that I must be satisfied that the material provides a factual basis from which I can establish that at least one member of the claim group has or had the necessary ‘traditional’ physical association with the application area. 
[187]	I refer to my reasons and conclusions regarding the requirements of ss 190B(5) and (6). I consider that the factual basis material contains many examples of the traditional physical connection that members of the claim group continue to maintain with the lands and waters in the claim area. One example is that a claim group member describes visiting the ‘White Lady’ and ‘Three Brothers’ sites in the Claim Area usually once or twice a year, taking his children there to ‘teach them the stories and tell them they have to look after those places’.
[188]	Having regard to the above, I am satisfied that the application establishes that at least one member of the claim group currently has a traditional physical connection with the lands and waters of the claim area. As such, I am satisfied that the Fourth Amended Application meets the requirements of s 190B(7).
Section 190B(8): no failure to comply with s 61A – condition met
[189]	Section 190B(8) provides that the application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that the application should not have been made because it does not comply with s 61A.  
[190]	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. Paragraph 3(c) or 5(c) of each of the Applicant Affidavits state that none of the area covered by the application is also covered by an approved determination of native title. This is confirmed in the Geospatial Assessment and my own searches of the NNTT’s geospatial database. Attachment B of the application confirms that the application excludes any of the lands and waters where native title has been determined, and Schedule B specifically excludes any areas subject to three determinations.
[191]	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 s  61A(4) apply. I am satisfied that the terms of Schedule B indicate that the Fourth Amended Application excludes any areas where a previous exclusive possession act was done, subject to ss 47, 47A, 47B or 47C. 
[192]	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. Paragraph 3 of Schedule B indicates that exclusive rights and interests are not claimed over areas where there has been a previous non-exclusive possession act, subject to ss 47, 47A, 47B or 47C.
[193]	Having regard to the information contained in the Applicant Affidavits, the Geospatial Assessment and Schedule B, I am satisfied that there is no failure to comply with s 61A. As such, the Fourth Amended Application meets the requirements of s 190B(8).
Section 190B(9): no extinguishment etc. of claimed native title – condition met
[194]	Section 190B(9) provides that the application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that claimed native title rights and interests include claims to ownership of minerals, petroleum or gas wholly owned by the Crown, exclusive rights to waters in an offshore place or extinguished native title rights and interests (except where such extinguishment can be disregarded under certain provisions of the Act).
[195]	Schedules Q and P to the application do not include claims under s 190B(9)(a) and (b) to minerals, petroleum or gas or to any waters in an offshore place.
[196]	Schedule B of the application confirms that the application does not cover any areas where native title rights and interests have otherwise been wholly extinguished.
[197]	Having regard to Schedules B, Q and P, I am satisfied that the Fourth Amended Application meets the requirements of s 190B(9).

End of reasons

Attachment A
Information to be included on the Register of Native Title Claims
Application name	Wongkumara People	
NNTT No.	QC2008/003	
Federal Court of Australia No.	QUD851/2018	

Section 186(1): Mandatory information
In accordance with ss 186, 190A(1) of the Native Title Act 1993 (Cth), the following is to be entered on the Register of Native Title Claims for the above application.
Application filed/lodged with:
Federal Court of Australia
Date application filed/lodged:
11 March 2008
Date application entered on Register:
12 April 2008
Applicant:
Clancy John McKellar, Iona Dawn Smith, Ernest (Hope) Ebsworth, Rosemary (Rose) Anne Wilson, Margaret Anne Collins, Sharleen Louise Knight, Archie Alfred Ebsworth, Norman John Hodge and Jacqueline Elizabeth Hill 
Applicant’s address for service:
Eddy Neumann
Eddy Neumann Lawyers
Level 1, 255 Castlereagh Street
SYDNEY NSW 2000
Phone: 02 9264 9933
Fax: 02 9264 9966
Conditions on Applicant’s authority
Nil
Area covered by application:
[As per the Schedule]
Persons claiming to hold native title:
[As per the Schedule]
Registered native title rights and interests:
[As per the Schedule]

Michael Raine
Delegate of the Native Title Registrar pursuant to ss 190–190D of the Act under an instrument of delegation dated 5 February 2024 and made pursuant to s 99 of the Act.
1 November 2024