NATIONAL NATIVE TITLE TRIBUNAL

REGISTRATION TEST

Reasons for Decision    

DELEGATE:	Graham Miner

Application Name:	 Ngarlawangga

Names of Applicant(s):	Adam Standard, Tadgee Limmerick, Maisey Hyland, Gladys Leak and Dianne Limmerick 

Region:	Pilbara			NNTT No.:	WC05/3

Date Application Made:	8 April 2005
Application Amended:	N/A

Federal Court No.:	WAD 78/05

The application is ACCEPTED for registration pursuant to s.190A of the Native Title Act 1993 (C’th).

			           June 2005
Graham Miner			  Date of Decision
Delegate of the Registrar pursuant to
sections 190, 190A, 190B, 190C, 190D

Brief History of the Application

The area of the Ngarlawangga application lies in the eastern Pilbara and is some 6, 901 square kilometres in area. The application was filed in the Federal Court on 8 April 2005 and pursuant to section 63 of the Native Title Act 1993 (Cwth) a copy was provided to the Registrar on 11 April 2005.

The application has not been further amended.

Information considered when making the Decision

In determining this application I have considered and reviewed the application (including all attachments and accompanying documents) and all of the information and documents from the following files, databases and other sources:
•	the National Native Title Tribunal’s Registration Testing files and Legal Services files for this application; 
•	the National Native Title Tribunal Geospatial Database;
•	the Register of Native Title Claims and Schedule of Native Title Applications;
•	the Native Title Register;
•	geospatial assessment and overlap analysis prepared by the the Tribunal's Geospatial Analysis & Mapping Branch dated 22 April 2005;
•	affidavit of [name withheld] dated 2 February 2005;
•	affidavit of [name withheld] dated 11 May 2005, and
•	affidavit of [name withheld] dated 6 December 2004.

Copies of the applicants’ additional information have been provided to the State of Western Australia in the interests of procedural fairness, in line with the decision by Carr J in State of Western Australia v Native Title Registrar & Ors [1999] FCA 1591 – 1594.  

Note: I have not considered any information and materials that may have been provided in the context of mediation of the native title claim group’s native title applications. This is due to the ‘without prejudice’ nature of mediation communications and the public interest in maintaining the inherently confidential nature of the mediation process.

All references to legislative sections refer to the Native Title Act 1993 unless otherwise specified.

Delegation Pursuant to Section 99 of the Native Title Act 1993 (Cth)
On 5 May 2005, Christopher Doepel, Native Title Registrar, delegated to members of the staff of the Tribunal including myself all of the powers given to the Registrar under sections 190, 190A, 190B, 190C and 190D of the Native Title Act 1993 (Cth). 

This delegation has not been revoked as at this date.

***
NOTE TO APPLICANT:

To be placed on the Register of Native Title Claims, the application must satisfy all the conditions in sections 190B and 190C of the Native Title Act. 

Section 190B sets out the merit conditions of the registration test.

Section 190C sets out the procedural conditions of the registration test. 

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

S190C: Procedural Conditions 

Application contains details set out in s. 61 and s. 62:  S. 190C(2)

S190C(2) first asks the Registrar’s delegate to test the application against the registration test conditions at sections 61 and 62. If the application meets all these conditions, then it passes the registration test at s. 190C(2). 

Native Title Claim Group:  S. 61(1)

The application is made by a person or persons authorised by all of the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group.

Reasons relating to this sub-condition

Section 190C(2) of the Act provides that the Registrar must, amongst other matters, be satisfied that the application contains all details and other information required by s. 61 of the Act.

I must consider whether the application sets out the native title claim group in the terms required by s. 61. That is one of the procedural requirements to be satisfied to secure registration: s. 190A(6)(b). If the description of the native title claim group indicates that not all persons in the native title group were included, or that it was in fact a sub group of the native title group, then the requirements of s. 190C(2) would not be met and the claim cannot be accepted for registration (Northern Territory of Australia v Doepel [2003] FCA 1384 at para 36).

This consideration does not involve me going beyond the application, and in particular does not require me to undertake some form of merit assessment of the material to determine whether I am satisfied that the native title claim group is in reality the correct native title claim group (Northern Territory of Australia v Doepel [2003] FCA 1384 at paras 16-17, 37).  I have consequently confined my considerations to all the information in the application.

Schedule A refers to Attachment A which includes the following description:

The persons on whose behalf the application is made are those persons who:

(a)	are descendants of the Ngarlawangga ancestors listed below; and/or;
(b)	are recognized by the applicant as Nglarawangga [sic]  in accordance with traditional law and custom.

Margie (Partatalpu); Rosy (Karliya-yangu), Toby Leak (Kujurlkurra), Standard (Kujamurra), Annie Standard (Kurnipa), Jerry Hyland (Karnparnarrnta, Jirrinparri, Highland-ngurra), Duck (Murnkurta), Topsy Coony (Kurntiri), Jimmy, Diana.

This description of persons included in the native title claim group would appear to be comprehensive, listing as it does some 10 ancestors from whom current recognised members of the group are descended. It may be that descendants of these ancestors do not identify as members of this claim group and elect to be members of other groups. The claim group description as it appears here does not appear to exclude those people electing to identify as members of other groups.

There is no information contained in the application that indicates that this group does not include, or may not include, all the persons who hold the communal native title in the area of the application. Additionally, there is nothing in the application before me which would indicate that there are people claiming to hold common or group rights and interests in the area covered by the application that have not been included in this claim.

Result:	Requirements met.

Name and address of service for applicants:  S. 61(3)

An application must state the name and address for service of the person who is, or persons who are, the applicant.

Reasons relating to this sub-condition

Part B of the Form 1 application states that the application is filed for the applicant. The persons named as the applicant are set out in the application. An address for service is provided. I am satisfied that this condition of the registration test has been met.

Result:	Requirements met

Native Title Claim Group named/described sufficiently clearly:  S. 61(4)

A native title determination application, or a compensation application, that persons in a native title claim group or a compensation claim group authorise the applicant to make must name the persons or otherwise describes the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.

Reasons relating to this sub-condition

Attachment A of the application describes the claim group and is set out at s. 61(1) above. For the reasons that led to my conclusions that the requirements for s. 190B(3) have been met, I am satisfied that the persons in the native title claim group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group.

Result:	Requirements met. 

Application is in prescribed form:  s. 61(5)

An Application must be in the prescribed form, and  be filed in the Federal Court, and  contain such  information in relation to the matters sought to be determined as is prescribed, and be accompanied by any prescribed documents and any prescribed  fee

Reasons relating to this sub-condition

The application is substantially in the required form prescribed by Regulation 5(1)(a) of the Native Title (Federal Court) Regulations 1998, s. 61(5)(a).

The application was filed in the Federal Court on 8 April 2005 as required by s. 61(5)(b) and contains such information as required by s. 61(5)(c). Section 61(5)(d) requires that the application be accompanied by any prescribed documents, these being affidavits from each of the persons comprising the applicant as per s.62(1)(a) and a map as prescribed by s. 62(1)(b). These prescribed documents accompany the application. I am not required to consider whether the application has been accompanied by the payment of a prescribed fee to the Federal Court.

Result:	Requirements met

Application is accompanied by affidavits in prescribed form:  S. 62(1)(a)

An application must be accompanied by an affidavit sworn by the applicant which addresses the matters required by s62(1)(a)(i) – s62(1)(a)(v) 

Reasons relating to this sub-condition     

Affidavits from each of the persons comprising the applicant have been provided, each of which is dated, signed and competently witnessed. I am satisfied that these affidavits contain the information required under s. 61(5)(i)-(v).

I am therefore satisfied that there has been compliance with the procedural requirements of s. 62(1)(a).

Result:	Requirements met

Application contains details set out in s. 62(2):  S. 62(1)(b)

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

Details of physical connection s: 62(1)(c)

Details of traditional physical connection (information not mandatory) and prevention of access to lands and waters (where appropriate)

Reasons relating to this sub-condition

This section provides that the application may contain details of traditional physical connection and/or any prevention of access.

Some information is provided at Schedule G by way of a general description of activities undertaken by the claim group in relation to the land and waters of the claim.

Result:	Provided

Information about the boundaries of the application area:  S. 62(2)(a)

62(2)(a)(i)  Information, whether by physical description or otherwise that enables the boundaries of the area covered by the application to be identified;

Reasons relating to this sub-condition

For the reasons that led to my conclusions that the requirements of s. 190B(2) had been met, I am satisfied that the application contains sufficient information to enable the area covered by the application to be identified.
 
Result:	Requirements met

62(2)(a)(ii)  Information, whether by physical description or otherwise that enables the boundaries of any areas within those boundaries that are not covered by the application to be identified.

Reasons relating to this sub-condition

For the reasons that led to my conclusion that the requirements of s. 190B(2) had been met, I am satisfied that the information provided is sufficient to enable the identification of any areas within the external boundaries of the claim area which are not covered by the application to be identified.

Result:	Requirements met

Map of the application area:  S. 62(2)(b)

The application contains a map showing the external boundaries of the area covered by the application

Reasons relating to this sub-condition

A map accompanies the application at Attachment C. For the reasons that led to my conclusion that the requirements of s. 190B(2) have been met, I am satisfied that the map accompanying the application shows the external boundaries of the claim area.

Result:	Requirements met.

Details and results of searches:  S. 62(2)(c)

The application contains details and results of all searches carried out to determine the existence of any non-native title rights and interests in relation to the land and waters in the area covered by the application

Reasons relating to this sub-condition

At Schedule D the applicant states that it does not have details of any searches that have been carried out to determine the existence of any non-native title rights and interests in relation to the Application area. The applicant is only required to provide details and results of searches of which the applicant is aware.

I am not aware of any searches that have been carried out over the area of this application.

Result:	Requirements met.

Description of native title rights and interests:  S. 62(2)(d)

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

Reasons relating to this sub-condition

The rights and interests claimed are set out at Schedule E to the application. The description does not merely consists of a statement to the effect that the native title rights and interests are all the native title rights and interests that may exist, or that have not been extinguished at law. 

I am of the view that the description contained at Schedule E, as set out fully in my reasons for decision in relation to s. 190B(4) below, is adequate for this condition of the registration test.

Result:	Requirements met.

Description of factual basis:  S. 62(2)(e)

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

Reasons relating to this sub-condition

Schedule F of the application includes a general description of the factual basis upon which it is asserted that the native title rights and interests claimed exist. It adequately addresses each of the particular requirements in s. 62(2)(e) (i), (ii) and (iii).

Result:	Requirements met

Activities carried out in application area:  S. 62(2)(f)

If native title claim group currently carry on any activities in relation to the area claimed, the application contains details of those activities

Reasons relating to this sub-condition

Schedule G to the application contains a general description of the activities carried out in relation to land and waters. I take this to mean at least the land and waters of the claim area.

I am satisfied that this description is sufficient for this condition of the registration test.

Result:	Requirements met.

Details of other applications:  S. 62(2)(g)

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

Reasons relating to this sub-condition

The applicant states at Schedule H: “not applicable”. I note that the application is not overlapped by any other application and so I am of the view that the information contained at Schedule H is satisfactory for the purposes of this section of the registration test.

Result:	Requirements met

Details of s. 29 notices:  S. 62(2)(h)

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

Reasons relating to this sub-condition

Attachment I of the application consists of a lengthy list of notices issued under s.29 of the Act (or under a corresponding provision of a law of the State or Territory) in relation to the whole or part of the application area of which the applicant was aware as at 14 December 2004. I see that this was some four months prior to filing. I note that there are later notices that issued before the applicant filed this application. However I accept that the applicant has included details of the notices of which the applicant was aware.

However, even if my above conclusion is incorrect, I am of the view that Parliament’s intention in relation to the requirements of s. 62(2)(h) is relatively clear.  Both the note at the end of that paragraph, which states: “Notices under s29 are relevant to subsection 190A(2)”, and also s. 190A(2) itself, make it reasonably clear that the purpose of the provision was to ensure that the Registrar was aware that the claim was affected by the relevant notice and, therefore, expedited the registration test of the application as required under s.190A(2).  The Tribunal is of course aware of the notices. I am of the opinion that in those circumstance it would be unduly harsh not accept an application for registration for not including details of notices of which the Tribunal is aware.

Result:	Requirements met.

Combined decision for s. 190C(2)
For the reasons identified above the application contains all details and other information, and is accompanied by the documents, required by ss.61 & 62.  

Result:	Requirements met.

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

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

Reasons relating to this condition

Section 190C(3) requires that I be satisfied that no person included in the application was a member of the native title claim group for any previous application in the circumstances set out in s.190C(3).

A search of the Tribunal’s geospatial database indicates that there are no previous applications which cover the whole or a part of the area covered by the current application. This is confirmed by the Tribunal's Geospatial Analysis & Mapping Branch in its assessment dated 22 April 2005. It follows that I do not have to consider the application of this provision any further.

Result:	Requirements met.

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

The Registrar must be satisfied that either of the following is the case:
(a)	the application has been certified under paragraph 202(4)(d) by each representative Aboriginal/Torres Strait Islander body that could certify the application in performing its functions under that Part: or
(b)	the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group.
Note: s.190C(5) – Evidence of authorisation:
If the application has not been certified as mentioned in paragraph (4)(a), the Registrar cannot be satisfied that the condition in subsection (4) has been satisfied unless the application:
(a)	includes a statement to the effect that the requirement set out in paragraph (4)(b) has been met; and
(b)	briefly set out the grounds on which the Registrar should consider that it has been met.

Reasons relating to this condition

Under this section, I am only required to be satisfied that one of the two conditions of s.190C(4) is met.

At Schedule R the applicant states that the amended application has been certified under s. 203BE of the Act by both the Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation and the Ngaanyatjarra Land Council. Section 190C(4)(a) requires that the application be certified by each Aboriginal or Torres Strait Islander body that could certify the application. In this instance, both the Yamatji and Ngaanyatjarra Land Councils could certify the application under s. 203BE.

The certificates were not filed in the Federal Court with the application, but were provided separately to the Registrar 15 April 2005. The certificate from the Ngaanyatjarra Council is signed by Ms Ingrid Hebron, Principal Legal Officer and Mr Bill Lawrie, Manager of the Native Title Unit and is dated 23 December 2004. I am of the view that by reason of their respective positions Ms Hebron and Mr Lawrie have authority to sign on behalf of Ngaanyatjarra Council.

The certificate provided by the Yamatji Land Council was signed by Mr Simon Hawkins, Executive Director of the Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation and is dated 11 April 2005. I am of the view that by reason of his position he has authority to sign on behalf of that Council.

As required by s. 203BE(4)(a) the certificates both contain statements to the effect that both Land Councils are of the opinion that:
(a)	all the persons in the native title group have authorised the applicant to make the application and deal with matters arising in relation to it; and
(b)	all reasonable efforts have been made to ensure that the application describes or otherwise identifies all the other persons in the native title claim group.

As required by s. 203BE(4)(b) of each of the certificates sets out briefly each Land Council’s reasons for being of that opinion. 

The Act provides that the representative body must not certify under this section if it is of the opinion that proper authorisation has not occurred. Both Yamatji and Ngaanyatjarra have provided opinions that proper authorisation has occurred and their reasons for being of this opinion. Therefore I am satisfied that both Yamatji and Ngaanyatjarra have met their requirements under the Act and that the applicants have authority to lodge this application and deal with matters arising in relation to it.

I am satisfied that the requirements of s. 190C(4) have been met.

Result:	Requirements met.

 Merits Conditions:  s. 190B

Identification of area subject to native title:  S. 190B(2)
		
The Registrar must be satisfied that the information and map contained in the application as required by paragraphs 62(2)(a) and (b) are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters.

Reasons relating to this condition

Schedule B refers to Attachment B for the area of the application. Attachment B describes the application area by reference to coordinates, pastoral leases and existing native title determination applications.

The description specifically excludes native title determination WG0072/98 Nharnuwangga Wajarri and Ngarlawangga (WC99/13) as determined on 5 July 2001.

Notes are included relating to the source and currency of information used to prepare the description.

Schedule C refers to Attachment C. Attachment C is a coloured copy of a map titled “Ngarlawangga Native Title Application” prepared by the Department of Land Administration, Land Claims Mapping Unit as at 16 November 2004 and includes:
•	the application area depicted by a bold outline and hachured and referenced in the legend;
•	lots described in the description are clearly labelled;
•	cadastral boundaries and land tenure;
•	coordinate values on SW and NE map extent;
•	scale bar, legend and locality map; and
•	a note relating to the datum on which geographic coordinates are based.

An assessment of the boundary description and map provided by the Tribunal’s Geospatial Analysis & Mapping Branch dated 22 April 2005 indicates that the  assessment notes that the exclusion of the Nharnuwangga Wajarii and Ngarlawangga determination (WG0072/98, WC99/13) has been included in the description but not in the map. Notwithstanding this, the assessment concludes that the description and the map are consistent and identify the area with reasonable certainty. 

For the above reasons, I am satisfied that the requirements of s. 190B(2) are met in relation to the area covered by the application. It follows that I am also satisfied that the physical description of the area covered by the application meets the requirements of s. 62(2)(a)(i) and that the map shows the boundaries of the claim area in compliance with the requirements of s. 62(2)(c). 

Areas within the external boundaries that are not covered by the application

The internal boundaries are described at Schedule B and are as follows:
“1)   Subject to 4), the Applicant excludes from the Application area any areas that are covered by any of the following acts as these are defined in either the Act, as amended (where the act in question is attributable to the Commonwealth), or Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA), as amended, (where the act in question is attributable to the State of Western Australia) at the time of the Registrar’s consideration:
(a)	Category A past acts;
(b)	Category A intermediate period acts;
(c)	Category B past acts that are wholly inconsistent with the continued existence, enjoyment and exercise of any native title rights or interests.

2)	Subject to 4) the Applicant excludes from the Application area any areas in relation to which:
(a)	a “previous exclusive possession act”, as defined in s. 23B of the Act, was done and the act was an act attributable to the Commonwealth; or
(b)	a “relevant act” as that term is defined in s. 12I of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) was done and the act is attributable to the State of Western Australia; or
(c)	a previous exclusive possession act under s. 23B(7) of the Act was done in relation to the area and the act was attributable to the State of Western Australia.
3)	Subject to 4), the Applicant also excludes from the Application area areas in relation to which native title rights and interests have otherwise been wholly extinguished.
4)	The Application area includes any area in relation to which the non-extinguishment principle (as defined in s. 238 of the Act) applies, including any area to which ss. 47, 47A and 47B of the Act apply, particulars of which will be provided prior to the hearing but which include such areas as may be listed in Schedule L.

The acceptability of the use of class or formula exclusions as appear here will depend on the state of knowledge of the claimants of the tenure in the claim area at the date the application is made. (Daniels v State of Western Australia [1999] FCA 686 (“Daniels”)) In Dieri v State of South Australia [2000] FCA 1327 the Court said that if tenure information might reasonably have been used to exclude areas from an application then reliance cannot be placed on class or formula exclusions.

Schedule D to the application does not contain any details of searches that have been conducted to determine the existence of any non-native title rights and interests in relation to the application area. That Schedule says the applicant does not have details of any searches that have been carried out to determine the existence of non-native title rights and interests in relation to the Application Area.

In relation to the question of class exclusions I note the following comments of Nicholson J in Daniels:

“The Act recognises the need to provide certainty for people with interests as to whether it is subject of a claim. The class formula approach proposed by the applicants to the definition of exclusion does, if otherwise appropriate, give certainty for respondent interest holders in that they know their interest is subject to claim unless specifically excluded. The determination of whether particular interests meet the definition referred to in that section will often have to await the determination of the application.” [38]

In Strickland, French J noted that:

“the act is to be construed in a way that renders it workable in the advancement of its main objects…The requirements of the registration test are stringent. It is not necessary to elevate them to the impossible…”

Having regard to the information contained in the application, I am satisfied that the class exclusion clauses used by the applicant at Schedule E amount to information that enables the internal boundaries of the application area to be identified with reasonable certainty.

Result:	Requirements met.

Identification of the native title claim group:  S. 190B(3)

The Registrar must be satisfied that:
(a)	the persons in the native title claim group are named in the application; or
(b)	the persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group.

Reasons relating to this condition

The claim group is described at Schedule A, Attachment A of the application. This is set out fully in my reasons at s. 61(1) above.

As no exhaustive list of names has been provided and as such, the requirements of s.190B(3)(a) have not been met. I must now consider whether or not the requirements of s.190B(3)(b) have been met. 

In State of Western Australia v Native Title Registrar [1999] FCA 1591-1594 Carr J said that “[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. But that does not mean that the group has not been described sufficiently….The Act is clearly remedial in character and should be construed beneficially”.

Identification of members of the native title claim group by reference to apical ancestors is capable of satisfying the requirements of s. 190B(3) even though the descendants are not individually named and some process of inquiry would need to be undertaken in order to determine if any one person is a member of the claim group. It is not for me to inquire as to the circumstances giving rise to the composition of the claim group, whether they be historical or current. 

In this particular instance, I am satisfied that the descendants of the ancestors named at Attachment A to the application could be identified with some inquiry. I am also satisfied that persons recognised as members of the claim group by the applicant could be identified, even though this would require some inquiry. 

I am satisfied that the requirements of s. 190B(3)(b) have been met.

Result:	Requirements met.

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

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

Reasons relating to this condition

The description of the rights and interests claimed is provided at Schedule E to the application. These are as follows.

Subject to laws and customs

The native title rights and interests claimed in this Application are subject to and exercisable in accordance with:

1)	the common law, the laws of the State of Western Australia and the Commonwealth of Australia;
2)	valid interests conferred under those laws; and
3)	the body of traditional laws and customs of the Aboriginal society under which rights and interests are possessed and by which native title claim group have a connection to the area of land and waters the subject of this Application.

Area A rights

The native title rights and interests in relation to Area A comprise:
1)	The right to possess, occupy, use and enjoy the area as against the world;
2)	A right to occupy the area;
3)	A right to use the area;
4)	A right to enjoy the area;
5)	A right to be present on or within the area;
6)	A right to hunt in the area;
7)	A right to fish in the area;
8)	A right to make decisions about the use of the area by members of the Aboriginal society to which the native title claim group belong;
9)	A right to make decisions about the use of the area by persons who are not members of the Aboriginal society to which the native title claim group belong;
10)	A right to invite and permit others to have access to and participate in or carry out activities in the area;
11)	A right of access to the area;
12)	A right to live within the area;
13)	A right to erect shelters upon or within the area;
14)	A right to camp upon or within the area;
15)	A right to move about the area;
16)	A right to engage in cultural activities within the area;
17)	A right to conduct and participate in ceremonies and meetings within the area;
18)	A right to control access of others to the area;
19)	A right to control access of others to the area except such person as may be exercising a right accorded by the common law, statute law of the Commonwealth or the State of Western Australia or a lawful grant by the British sovereign or its successor;
20)	A right to visit, care for and maintain places of importance and protect them from physical harm;
21)	A right to traditional resources, other than minerals and petroleum from the area;
22)	A right to take fauna;
23)	A right to take flora (including timber);
24)	A right to take soil;
25)	A right to take sand;
26)	A right to take stone and/or flint;
27)	A right to take clay;
28)	A right to take gravel;
29)	A right to take ochre;
30)	A right to take water;
31)	A right to manufacture traditional items from the resources of the area;
32)	A right to trade in the resources of the area;
33)	A right to control the taking, use and enjoyment by others of the resources of the area;
34)	A right to maintain, conserve and protect significant places and objects located within the area;
35)	A right to enjoy all the features, benefits and advantages inherent in the environment of the area;
36)	A right to be identified and acknowledged, in accordance with the traditional laws adhered to and traditional customs observed by the group or groups, as the holders of native title rights in relation to the land and waters of the area.

Area B rights
The native title rights and interests which are claimed in relation to Area B are all the rights claimed above in relation to Area A, except the right to possess, occupy, use and enjoy the area as against the whole world and the rights set out at paragraphs 9), 18), 19), and 33) and the right hunt, gather or take fauna, in so far as such right is contained within the paragraphs 3), 4), 6), 7), 21), 22) and 35).

Area C rights
The native title rights and interests which are claimed in relation to Area C are all the rights claimed above in relation to Area A, except the right to possess, occupy, use and enjoy the area as against the whole of the world and the rights set out in paragraphs 9), 18), 19) and 33).

The application includes a definitions section, which provides definitions of Areas A, B and C. These are as follows:

Area A means land within the Application area that is landward of the high water mark and which comprise:
(i)	areas of unallocated Crown land (including islands) that have not been previously subject to any grant by the Crown;
(ii)	areas to which s. 47 of the Act applies;
(iii)	areas to which s. 47 A of the Act applies;
(iv)	areas to which s. 47B of the Act applies; and 
(v)	other areas to which the non-extinguishment principle applies, set out in s. 238 of the Act, applies and in relation to which there has not been any prior extinguishment of native title.

Area B means land and waters which are “nature reserve” or “wildlife sanctuary” (as those terms are defined in the Wildlife Conservation Act 1950 (WA) created before 31 October 1975.

Area C means land and waters within the Application area that is not included in Areas A or B above. 

In summary, the applicant is claiming exclusive possession, occupation use and enjoyment in relation to Area A, and non-exclusive rights and interests in relation to all other areas.

Section 190B(4) requires the Registrar or his delegate to be satisfied that the description contained in the application of the claimed native title rights and interests is sufficient to allow the rights and interests claimed to be readily identified.  For the purposes of the condition then, only the description contained in the application can be considered.
 
Section 62(2)(d) requires that the application contain “a description of the native title rights and interests claimed in relation to particular land or waters (including any activities in exercise of those rights and interest) but not merely consisting of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished at law”.  This terminology suggests that Parliament intended to ‘screen out’ applications which describe native title rights and interests in a manner which is vague or unclear.

Furthermore, the phrases ‘native title’ and ‘native title rights and interests’ used exclude any rights and interests that are claimed but are not native title rights and interests as defined by s.223 of the NTA.  Section 223(1) reads as follows:

The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a)	the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b)	the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c)	the rights and interests are recognised by the common law of Australia.

Some interests which may be claimed in an application may not be native title rights and interests and are not ‘readily identifiable’ for the purposes of s. 190B(4).  These are rights and interests which the courts have found to fall outside the scope of s.223.  Rights which are not readily identifiable include: 
•	the rights to control the use of cultural knowledge that goes beyond the right to control access to lands and waters; 
•	rights to minerals and petroleum under relevant State legislation; 
•	an exclusive right to fish offshore or in tidal waters, and 
•	any native title right to exclusive possession offshore or in tidal waters.

Are the rights and interests claimed readily identifiable?

Area A rights

The High Court  in Ward at [52] said of it ‘It is necessary to recognise that the holder of a right, as against the whole world, to possession of land, may control access to it by others and, in general, decide how the land will be used. Whether the claim be phrased as ‘possess, occupy use and enjoy’ or as the sum of all the rights (the whole of the ‘bundle of rights’) enumerated here is, at the prima facie level of the registration test, of little moment. I am of the view that where exclusive possession may be shown the holders may ‘decide how the land will be used’ and will have all the rights in land which might flow from that. I accept that as a matter of logic, the holder of exclusive rights will also hold lesser rights of the same type. However, the applicant has claimed each of the rights listed separately and hence they must in my opinion be considered separately.

I note that those rights listed at 21), and 31) are limited to those rights accorded under traditional custom. Thus, I consider that they are capable of recognition at common law and readily identifiable for the purposes of the registration test.

The right claimed at para 35). A right to enjoy all the features, benefits and advantages inherent in the environment of the area. This right is in my opinion very broad and vague. It does not specify how the environment is to be enjoyed. Hence it is not readily identifiable. 

The right claimed at para 36. The right of individual members of the native title group to be identified and acknowledged as the holders of native title rights in relation to the land and waters of the area.  Such a claim ‘addresses the matter of law falling to be decided in the context of ss. 223 and 225 of the NTA.  That is, determination of native title must determine who the persons or each group of perons are who hold the common or group rights.  This therefore cannot itself be a native title right and interest.’ - Daniel v State of Western Australia at [302]. I am of the view this claimed right is not readily identifiable.

I am satisfied that most of the rights and interests listed under the heading “Area A rights” are capable of recognition in those areas where exclusive possession may exist, these areas having been defined in the definitions section of the Form 1 application.

Area B rights
As set out above, the rights and interests claimed in this area are those claimed in relation to Area A with the exceptions of the rights and interests listed at paragraphs 1), 9), 18), 19) and 33). The right to hunt, gather or take fauna, in so far as such right is contained within paragraphs 3), 4), 6), 7), 21), 22) and 35), are also excluded.

Area B as it is defined in the definitions section of the application is an area over which exclusive possession cannot be made out. 

I refer to the rights claimed at 2), 3) and 4). They amount to a non-exclusive claim to the rights of occupation, use and enjoyment. I have considered these rights in the light of the decision of the Full Federal Court in Attorney General for the Northern Territory v Ward [2003] FCAFC at [16] - [23].  Briefly, in that case a determination was sought for 'non-exclusive rights to occupy, use and enjoy the land and waters in accordance with their traditional laws and customs, including, as incidents of that entitlement' certain identified rights - see [16]. Among other things, Wilcox, North and Weinberg JJ rejected the inclusion of the word 'occupy.' saying that:
"As was pointed out by Gleeson CJ, Gaudron, Gummow and Hayne JJ in the High Court (at [89]), the expression 'possession, occupation, use and enjoyment', used in s 225(e) of the Act, 'is a composite expression directed to describing a particular measure of control over access to land'. The words of the proposed determination, 'occupy, use and enjoy' are not identical to, but are reminiscent of, this composite expression. They might be understood as conveying the notion discussed by their Honours, including control of access. This would be inappropriate in this case. The right of absolute control of access must have been extinguished by the grant of the pastoral leases. There might be a surviving right to make decisions, pursuant to Aboriginal laws and custom, about the use and enjoyment of the land by Aboriginal people. That right would not be affected by the grant of a pastoral lease. However, that matter is specifically addressed by sub-para (e) of para 5. We think the word 'occupy' should be omitted from the opening words of para 5. (at [17]).

It is my view that the above is relevant as to whether the right to "occupy", claimed here can be readily identified in respect of areas where exclusive possession cannot be sustained. It is my view that, in light of the above decision, it cannot be so identified. 

The Full Federal Court also considered in Attorney General for the Northern Territory v Ward [2003] FCAFC 283 how rights and interests which are not exclusive should be formulated. The Court held that because of the requirements of s.225 of the Act that:
•	there must be a specification of the content of the nature and extent of the relevant rights and interests; 
•	the statement of rights and interests in a determination must exhaustively indicate the determined incidents of the right to use and enjoy. 
In particular, the Court said at [21]:

“A statement about the right to ‘occupy, use and enjoy’ (or merely ‘use and enjoy’) in accordance with traditional laws and customs conveys no information as to the nature and extent of the relevant rights and interests. It is equivalent to a statement that the holders of the traditional rights and interests are entitled to exercise their traditional rights and interests. Something more is obviously required. There must be a specification of the content of the relevant rights and interests. That is why the parties included sub-clauses (a) to (e). It is to those sub-clauses that a reader may look in considering the effect of the determination. They must exhaustively indicate the determined incidents of the right to use and enjoy.”

The rights claimed at paragraphs 3) to 4) do not specify the content of the use and enjoyment and hence they are not in my opinion readily identifiable.

The rights claimed at para 35) and 36) are not readily identifiable in respect of Area B for the reasons stated under Area A above. 

Looking to the other rights and interests that the applicant is claiming in relation to Area B, those rights are sufficiently clear in their scope and extent to be readily identifiable for the purposes of this section of the registration test.

Area C
Area C appears to be those areas where exclusive native title cannot be made out. For the reasons set out for Area B above, I am of the view that only those rights and interests that were readily identifiable in Area B are readily identifiable in respect of Area C.

It is worth noting that not all rights and interests have to be readily identifiable for the application to meet the requirements of this part of the registration test. Only one right or interest need be readily identifiable for the application to satisfy this section. However, it follows that those rights and interests not readily identifiable will not be capable of registration.

On the basis that some of the rights and interests claimed are readily identifiable for the purposes of this section, I am satisfied that the requirements for this section have been met.

Result:	Requirements met.

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

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

Reasons relating to this condition

Section 190B(5) requires that the Registrar (or his delegate) must be satisfied that the factual basis provided in support of the assertion that the claimed native title rights and interests exist is sufficient to support that assertion. In particular, the factual basis must be sufficient to support the assertions set out in subparagraphs (a), (b) and (c). 

In Martin v Native Title Registrar [2001] FCA 16, French J considered this condition of the registration test.  I have had regard to his Honour’s findings that:

“Provision of material disclosing a factual basis for the claimed native title rights and interests, for the purposes of registration, is ultimately the responsibility of the applicant.  It is not a requirement that the Registrar or his delegate undertake a search for such material” [23].

With respect to paragraph (a) of s.190B(5), his Honour said:

“…What he (the delegate) had to be satisfied of was that the factual basis on which it was asserted that the native title rights and interests claimed exist supported the proposition that the native title claim group and the predecessors of those persons had an association with the area” [22].

His Honour imparts the same formulation of the question to the circumstances of paragraph (b) - see [27].

With respect to paragraph (c), his Honour noted that:

“…the delegate had to be satisfied that there was a factual basis supporting the assertion that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs. This is plainly a reference to the traditional laws and customs which answer the description set out in par (b) of s.190B(5)”  [29]

In Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 (the Yorta Yorta decision), the majority of the High Court noted that the word ‘traditional’ refers to a means of transmission of law or custom, and conveys an understanding of the age of traditions. Their Honours said that ‘traditional’ laws and customs are those normative rules which existed or were “rooted in pre-sovereignty traditional laws and customs”: at [46], [79]. This normative system must have continued to function uninterrupted from the time of acquisition of sovereignty to the time when the native title group sought determination of native title. This is because s.223(1)(a) speaks of rights and interests as being ‘possessed’ under traditional laws and customs, and this assumes a continued “vitality” of the traditional normative system. Any interruption of that system which results in a cessation of the normative system would be fatal to claims to native title rights and interests because the laws and customs which give rise to the rights and interests would have ceased to exist and could not be effectively reconstituted even by a revitalization of the normative system. Their Honours noted, however, that this does not mean that some change or adaptation of the laws and customs of a native title claim group would be fatal to a native title claim; rather that an assessment would need to be made to decide what significance (if any) should be attached to the fact that traditional law and custom had altered. In short, the question would be whether the law and custom was ‘traditional’ or whether it could “no longer be said that the rights and interests asserted are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples when that expression is understood in the sense earlier identified” - at [82] and [83].

I find these statements in the Yorta Yorta decision of assistance in interpreting the terms “traditional laws”, “traditional customs” and “native title rights and interests”, as found in s. 190B(5). However, I am also mindful that the “test” in section 190A involves and administrative decision – it is not a trial or hearing of a determination of native title pursuant to s. 225, and it is therefore not appropriate to apply the standards of proof that would be required at such a trial or hearing. I note also that the test in s. 190B(5) requires the provision of a sufficient factual basis for the assertion that the native title rights and interests claimed exist; it is not the task of the Registrar or his delegates to make findings about whether or not the claimed native title rights and interests exist. Indeed, the particular wording of  s. 190B(5) differs from the definition in s. 223, and this suggests to me that I should pay close attention to whether the factual basis satisfactorily addresses the particular assertions identified in sub-paragraphs (a) to (c).

On 19 May 2005, the applicant provided additional information in support of this and other conditions of the registration test. This additional information comprised three affidavits, two of which were deposed by persons comprising the applicant, the other having been deposed by a gentleman who states that he is a Ngarlawangga elder.

The applicants also provide material in support of s. 190B(5) at Schedules F and G.

Schedule F contains a general description of the factual basis on which it is asserted that the three criteria identified at s. 190B(5) (a) – (c) are met. Schedule G provides details of the activities currently being carried out within the area claimed. The veracity of the statements in these Schedules is attested to by each of the persons named as the applicant in the affidavits accompanying the application.

It is not the role of the delegate to reach definitive conclusions about the complex anthropological issues pertaining to applicant’s relationship with country subject to native title claimant applications. That is a judicial enquiry. What I must do is consider whether the factual basis provided by the applicant is sufficient to support the assertion that claimed native title rights and interests exist. In particular this material must support the assertions noted in s. 190B(5)(a), (b) and (c).

I turn now to consider the three matters set out in s. 190B(5)(a) – (c).

(a)	the native title group have, and the predecessors of those persons had, an association with the area;
To be satisfied under this criterion, it must be evident that the association with the area is and was communal, that is, shared by a number of members of the native title claim group.

Schedule F states that:

(i)	the native title group have an association with the area based on traditional laws which they acknowledge and traditional customs which they observe;
(ii)	the predecessors of the native title claim group had an association with the area from a time prior to the assertion of British sovereignty  in relation to the area;
(iii)	the native title rights and interests are possessed under a body of traditional laws acknowledged and traditional customs observed by the native title claim group and their predecessors; and
(iv)	the native title claim group have continued to hold the native title in accordance with those traditional laws and customs, including laws and customs which vest in land and waters in the native title claim group on the basis of:
(a)	descent from ancestors connected with the area;
(b)	conception in the area;
(c)	birth in the area;
(d)	traditional religious knowledge of the area;
(e)	traditional knowledge of the creation and geography of the area;;
(f)	traditional knowledge of the resources of the area; and
(g)	knowledge of and participation in traditional ceremonies and rituals.

Schedule G provides a summary of the activities the native title claim group currently carries out in relation to the claim area:
(i)	hunting, gathering and fishing;
(ii)	moving about, living, residing, erecting shelters and camping;
(iii)	conducting and engaging in cultural activities, ceremonies, rituals, meetings and teaching of, maintaining, conserving and protecting the significant and physical attributes of the area and places, works and objects within the area; and
(iv)	taking resources from the area, including fauna, flora, soil, sand, stone, flint, clay, gravel, ochre, water for use and consumption for food, shelter, healing, decoration, cultural, religious, ceremonial and ritual purposes and for manufacture and trade of objects, materials and good, in the form of tools, weapons, clothing, shelter and decoration.

In my view these activities are indicative of the native title claim group’s association with the claimed area. This assertion of association is supported by the claimant affidavits provided as additional material. For example:
•	[name withheld] (19 May 2005) and [name withheld] (11 May 2005) talk about fishing and hunting at areas throughout the claim area;
•	[name withheld], [name withheld] and [name withheld] (19 May 2005) talk about camping and moving about the claim area, with [name withheld] speaking specifically about erecting shelters;
•	[name withheld] and [name withheld] and [name withheld]  talk about having been taught about their country and [name withheld] speaks about teaching children in a similar fashion;
•	The affidavits of [name withheld] and [name withheld] also talk about observing cultural practices in the claim area.

In their affidavits [name withheld] and [name withheld] refer to their predecessors as being the source of their knowledge and continuing practice. [name withheld] refers to her adoptive parents as the source of her knowledge and practice. [name withheld] also refers to the passing on of this information to the younger generations.

Each of the activities mentioned in the affidavits are described as being carried out with other members of the claim group. Additionally, each of the deponents attributes their knowledge of the claim area and boundaries to their elders and other people they grew up with. I take this as evidence of the communal nature of the association with the claim area.

On the basis of the information provided I am satisfied that there is sufficient factual basis to support the assertion that the native title claim group have, and their predecessors had, an association with the area that is the subject of this application.

(b)	that there exist traditional laws acknowledged and traditional customs observed by the native title claim group that give rise to the claim to native title rights and interests.

Information at Schedules F and G of the application and in the three additional affidavits provide a factual basis to support the existence of laws and customs observed by the native title claim group that give rise to a claim for native title rights and interests in the area.

In particular I note the statements in para (iv) of Schedule F to the effect that laws and customs vest land and waters in the native title claim group on the basis of: descent from ancestors connected with the area; conception in the area; birth in the area; traditional religious knowledge of the area; traditional knowledge of the creation and geography of the area; traditional knowledge of the resources of the area; and knowledge of and participation in traditional ceremonies and rituals associated with the area.  
Schedule G describes current activities carried out by the claimants on their country.  The activities described are consistent with the claim to native title rights and interests and with the existence of traditional laws acknowledged and traditional customs observed by the native title claim group that give rise to the claim to native title rights and interests.
These statements are supported by information in the claimants’ additional information affidavits. For example:
•	[name withheld] talks about traditional law and customs governing behaviour and access to sites (paragraphs 4 and 5);
•	[name withheld] talks about the teaching of Law and language, rituals associated with death and with travelling about the claim area carrying out various activities and the transmission of rights from parents to children and grandchildren (paras 15 and 16); and
•	[name withheld] talks about having been taught about law and custom (paras 4 and 5).

The above and other information in the affidavits to which I have referred satisfies me that there is sufficient factual basis to support the assertion that there exist traditional laws and customs that are acknowledged by and observed by the native title claim group that give rise to the claimed native title rights and interests.

(c)	that the native title claim group has continued to hold the native title in accordance with their traditional laws and customs;

Under this criterion, I must be satisfied that the native title claim group continues to hold native title in accordance with their traditional laws and customs.

For the reasons set out in s. 190B(5)(b) above and having regard to the same material I am satisfied that there is sufficient factual basis to support the assertion that the claim group has continued to hold native title in accordance with those traditional laws and customs.

See above Schedule F paras (iii) and (iv) and G para (iii).

The continued observation of traditional laws and customs for which the native title rights and interests claimed are said to derive can be found in the claimants’ additional affidavits and includes:
•	the education of subsequent generations in relation to traditional law, custom and knowledge; and 
•	observance of cultural practices including rituals and avoidance of certain areas if the requisite knowledge or seniority within the group was not possessed; 
•	rituals associated with birth and death; and 
•	practices associated with the distribution of food and resources obtained from the claim area.

Based on the information before me and to which I have referred above I am satisfied that there is sufficient factual basis for the assertion that the native title claim group has continued to hold the native title in accordance with those traditional laws and customs identified at s. 190B(5)(b).

Having regard to all the above I am satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion.

Result:	Requirements met.

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

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

Reasons relating to this condition

Under s. 190B(6), I must consider that, prima facie, at least some of the rights and interests claimed can be established. The Registrar takes the view that this requires only one right or interest to be prima facie established. 

The term “prima facie” was considered in North Ganalanja Aboriginal Corporation v Qld 185 CLR 595 by their Honours Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ, who noted:

“The phrase can have various shades of meaning in particular statutory contexts but the ordinary meaning of the phrase “prima facie” is: “At first sight; on the face of it; as it appears at first sight without investigation.” [citing Oxford English Dictionary (2nd ed)  1989].”

This test was recently considered and approved in Northern Territory v Doepel [2003] FCA 1384, see at paras 134 -135. Briefly, the Court concluded that although the above case was decided before the 1998 amendments of the Act there is no reason to consider the ordinary usage of ‘prima facie’ there adopted is no longer appropriate. 

I have adopted the ordinary meaning referred to by their Honours in considering this application for the purpose of deciding which native title rights and interests claimed can be established on a prima facie basis.

Where rights and interests are not readily identifiable, it follows that they cannot be prima facie established. Therefore, it is only necessary for me to consider whether the application and any of the supporting material establishes prima facie the rights and interests listed at Attachment E paragraphs …

Schedule E lists 36 separate rights and interests which are claimed in relation to the application area. These are listed in my reasons regarding s. 190B(4) above. Not all thirty six rights are claimed in relation to all of the application area, a distinction is made between rights claimed in relation to land where exclusive possession is claimed and rights claimed in relation to where exclusive possession is not claimed. The rights claimed in relation to “nature reserves” and “wildlife sanctuaries are further refined to take into account native title rights that might otherwise be claimed if not for inconsistent legislation.

I will now consider each right and interest claimed and whether each can be prima facie established based on the relevant information.

The rights and interests claimed are qualified as follows:

“Subject to laws and customs

The native title rights and interests claimed in this Application are subject to and exercisable in accordance with:

1)	the common law, the laws of the State of Western Australia and the Commonwealth of Australia;
2)	valid interests conferred under those laws; and
3)  the body of traditional laws and customs of the Aboriginal society under which rights and interests are possessed and by which native title claim group have a connection to the area of land and waters the subject of this Application.”

The application includes a definitions section, which provides definitions of Areas A, B and C. These are as follows:

Area A means land within the Application area that is landward of the high water mark and which comprise:
(i)	areas of unallocated Crown land (including islands) that have not been previously subject to any grant by the Crown;
(ii)	areas to which s. 47 of the Act applies;
(iii) areas to which s. 47 A of the Act applies;
(iv) areas to which s. 47B of the Act applies; and 
(v) other areas to which the non-extinguishment principle applies, set out in s. 238 of the Act, applies and in relation to which there has not been any prior extinguishment of native title.

Area B means land and waters which are “nature reserve” or “wildlife sanctuary” (as those terms are defined in the Wildlife Conservation Act 1950 (WA) created before 31 October 1975.

Area C means land and waters within the Application area that is not included in Areas A or B above. 

I direct that these definitions be included in the Register.

Rights in Area A

The native title rights and interests in relation to Area A comprise:

1)   the right to possess occupy use and enjoy the area as against the whole world.
Established

Subject to the satisfaction of other requirements, the majority of the High Court in Western Australia v Ward (2002) 191 ALR 1 indicated that a claim to exclusive possession, occupation, use and enjoyment of lands and waters can, prima facie, be established. 

However, the Court indicated that such a claim may only be able to be established prima facie in relation to some parts of a claim area, such as those areas where there has been no previous extinguishment of native title, or where extinguishment is to be disregarded (for example, where the applicants claim the benefit of ss.47, 47A or 47B). This is recognised by the applicant in this application. 

I add that over areas where a claim to exclusive possession cannot be sustained (i.e., where the claim is non-exclusive in nature), the Court has indicated that a claim to ‘possession, occupation, use and enjoyment’ of the land and waters cannot, prima facie, be established. In other words, where native title rights and interests do not amount to an exclusive right, as against the whole world, to possession, occupation, use and enjoyment of the claim area, the Court said that “it will seldom be appropriate or sufficient, to express the nature and extent of the relevant native title rights and interests by using those terms”: at [51]. Similarly, in De Rose v South Australia [2002] FCA 1342, O’Loughlin J said that such a description was “inappropriate”: at [919].

It would seem, then, that without further investigation, a non-exclusive right to possession, occupation, use and enjoyment is not capable of being prima facie established. 

I now consider the information available to support the prima facie establishment of the right claimed.

Schedule F states that:

(i)	the native title group have an association with the area based on traditional laws which they acknowledge and traditional customs which they observe;
(ii)	the predecessors of the native title claim group had an association with the area from a time prior to the assertion of British sovereignty  in relation to the area;
(iii)	the native title rights and interests are possessed under a body of traditional laws acknowledged and traditional customs observed by the native title claim group and their predecessors; and
(iv)	the native title claim group have continued to hold the native title in accordance with those traditional laws and customs, including laws and customs which vest in land and waters in the native title claim group on the basis of:
(a)	descent from ancestors connected with the area;
(b)	conception in the area;
(c)  birth in the area;
(d)  traditional religious knowledge of the area;
(e)  traditional knowledge of the creation and geography of the area;;
(e)  traditional knowledge of the resources of the area; and
(f)  knowledge of and participation in traditional ceremonies and rituals.

Schedule G provides a summary of the activities the native title claim group currently carries out in relation to the claim area:
(i)      hunting, gathering and fishing;
(ii)     moving about, living, residing, erecting shelters and camping;
(iii)  teaching of, maintaining, conserving and protecting the significant and physical attributes of the area and places, works and objects within the area, and
(iv)    taking resources from the area, including fauna, flora, soil, sand, stone, flint, clay, gravel, ochre, water for use and consumption for food, shelter, healing, decoration, cultural, religious, ceremonial and ritual purposes and for manufacture and trade of objects, materials and good, in the form of tools, weapons, clothing, shelter and decoration.

These activities are consistent with the native title claim group’s possession occupation use and enjoyment of the relevant area.

Further the affidavits of [name withheld], [name withheld], and [name withheld] support the existence of this composite right. For instance [name withheld] refers to her inheriting her Ngarlawangarra and law through her adopted mother (para 2) and of living on and learning about her country ( para 3 – 6). [Name withheld] also speaks of living on Ngarlawangarra country and of hunting, fishing and gathering on country (paras 7 -10). [name withheld] also speaks of :
•	the observance of customs associated with particular areas (para 12); 
•	burial practices associated with country (para 13); 
•	her obligation to pass country on to her children and to teach them about customs relating to country ( para 15 and16).

Similarly [name withheld] tells of his living on country, being taught about it and hunting and fishing (para 3 – 6).

All the above supports the native title claim group possessing, occupying, using and enjoying areas where exclusive possession can be sustained.

I am satisfied there is adequate information to support the prima facie establishment of the rights claimed at para 1) in respect of Area A.
 
Schedule E lists native title rights and interests at para 2) – 36) claimed over the application area. In practical terms, registration of an exclusive right to possession, occupation, use and enjoyment of the area would presumably subsume those rights listed. I say this because the Courts have indicated that the right to ‘possession, occupation, use and enjoyment to the exclusion of all others’ is the fullest expression of native title rights and interests. That said, Schedule E is constructed in such a way that each right is expressed separately and stands or falls independently.

2}	A right to occupy the area;
3)	A right to use the area;
4)	A right to enjoy the area;
5)	A right to be present on or within the area;
6)	A right to hunt in the area;
7)	A right to fish in the area;  

Established

Based on the same information referred to under para 1) above, I am satisfied there is sufficient information to support the prima facie establishment of the rights claimed at paras. 2) – 7) above in respect of Area A.

8)  A right to make decisions about the use of the area by members of the Aboriginal society to which the native title claim group belong;
9) A right to make decisions about the use of the area by persons who are not members of the Aboriginal society to which the native title claim group belong;
10) A right to invite and permit others to have access to and participate in or carry out activities in the area;

Established

These three native title rights (8, 9 and 10) are interests can be seen as an integral part of the right of exclusive possession which right I am satisfied can be prima facie established. However, they are claimed separately and thus must be considered separately.

Schedule G provides a summary of the activities the native title claim group currently carries out in relation to the claim area and the activities include maintaining, conserving and protecting the significant and physical attributes of the area and places, works and objects within the area. I believe that these activities must involve the making of decisions about the use of the area and who may be permitted access.

I note that [name withheld] says in her affidavit:
6.	[People who want to travel and camp in the claim area must ask a Ngarlwangga person for permission first.]

10	[If people take food or medicine from the claim area and don’t give some to Ngarlawangga People, they will get into trouble.] 

11	[The same applies to things like cutting wood.]
[Please note that this is a summary of the contents of the relevant paragraphs of the affidavit.]

I am satisfied there is sufficient information in the application and in the additional material to support the prima facie establishment of the above three rights in Area A.

11) A right of access to the area;	
12) A right to live within the area;
13) A right to erect shelters upon or within the area;
14) A right to camp upon or within the area;
15) A right to move about the area;
16) A right to engage in cultural activities within the area;
17) A right to conduct and participate in ceremonies and meetings within the area;

Established

Based on the same information referred to under para 1) above I am satisfied there is adequate information to support the prima facie establishment of the rights claimed at paras. 11) – 17) above in respect of Area A.

18) A right to control access of others to the area;
19) A right to control access of others to the area except such person as may be exercising a right accorded by the common law, statute law of the Commonwealth or the State of Western Australia or a lawful grant by the British sovereign or its successor;

Established

I see that [name withheld] says in her affidavit:

“6.	[People who want to travel and camp in the claim area must ask a Ngarlwangga person for permission first.]

I note that [name withheld] statement in para 6. is expressed in the past tense. However there is some further information in her affidavit about the current right “to be asked”, i.e. to control access. 

10	[If people take food or medicine from the claim area and don’t give some to Ngarlawangga People, they will get into trouble.] 

11	[The same applies to things like cutting wood.]
[Please note that this is a summary of the contents of the relevant paragraphs of the affidavit.]

Having regard to the above, the other information in the application as a whole, and the affidavits, I am satisfied there is sufficient information to support the prima facie establishment of the rights claimed at paras. 18) – 19) above in respect of Area A.

20) A right to visit, care for and maintain places of importance and protect them from physical harm;
21) A right to take traditional resources, other than minerals and petroleum from the
area;	
22) A right to take fauna;
23) A right to take flora (including timber);
24) A right to take soil;
25) A right to take sand;
26) A right to take stone and/or flint;
27) A right to take clay;
28) A right to take gravel;
29) A right to take ochre;
30) A right to take water;
31) A right to manufacture traditional items from the resources of the area;

Established

I refer to para (iv) of Schedule G which is set out above and to the affidavits to which I have referred. I am satisfied there is sufficient information to support the prima facie establishment of the rights claimed at paras. 20) – 31) above in respect of Area A.

32) A right to trade in the resources of the area;

Not established

The right to trade in the resources of the area (paragraph 32)), has been considered by the Court. In Commonwealth of Australia v Yamirr (1999) 101 FCR 171, the Full Federal Court in obiter noted that
“It may well be right… and as seems logical, to view the right to trade as an ‘integral part’ or integral aspect of a right of exclusive possession”.
At first instance in this case, Olney J commented in obiter that the trade consisted of the exchange of goods and did not amount to a right or interest in relation to land or waters as required by s.223. This finding was noted by Merkel J on appeal but his Honour made no comment about it. This issue was not put before the High Court. However, based on the obiter comments of the Full Court it seems that the rights of trade can be established over areas where a claim to exclusive possession can be sustained, but only in respect of such areas. 

Schedule G states in part that the native title claim group currently carryout the following activities in relation to the land and waters: 
(iv)    taking resources from the area, including fauna, flora, soil, sand, stone, flint, clay, gravel, ochre, water for use and consumption for food, shelter, healing, decoration, cultural, religious, ceremonial and ritual purposes and for manufacture and trade of objects, materials and goods, in the form of tools, weapons, clothing, shelter and decoration (italics added).

However I can find no other information that supports the trade of resources of the area.
I am not satisfied there is sufficient information to support the prima facie establishment of the rights claimed at para. 32) in respect of Area A.

I refer to s. 190(3A) of the Act. That section permits an applicant to provide additional information to the Registrar in support of any rights and interests that were not registered when the application was tested and accepted for registration. In brief, provided that additional information satisfies the Registrar (or his delegate) that, had it been before him at the time of testing, the right would have been accepted for registration, then, subject to meeting the other conditions of the test, the right in question will be entered in the Register of Native Title Claims.

33) A right to control the taking, use and enjoyment by others of the resources of the area;

Established

This right is akin to that claimed at paras 18 and 19 above in that the control of the taking of and use of resources involves the control of access. Based on the same information referred in respect of those paragraphs I am satisfied there is sufficient information to support the prima facie establishment of the right claimed at para 33) in respect of Area A.

34) A right to maintain, conserve and protect significant places and objects located within the area;

Established 

Schedule G states in part that the native title claim group currently carryout the following activities in relation to the land and waters: 
“(iii) conducting and engaging in cultural activities, ceremonies, rituals,  meetings and teaching of, maintaining, conserving and protecting the significant and physical attributes of the area and places, works and objects within the area;”(italics added)
I also refer to the affidavits to which I have had regard above. I am satisfied that collectively they demonstrate that the native title claim group has a close association with their country and that this supports the applicants’ statements that the group currently carryout the activities set out in para (iii) of Schedule G. 
I am satisfied there is sufficient information before me in the application and affidavits to support the prima facie establishment of the right claimed at para 34) in respect of Area A.

35) A right to enjoy all the features, benefits and advantages inherent in the environment of the area;
Not established
This right is not readily identifiable hence it cannot be prima facie established. 

Not established

36) A right to be identified and acknowledged, in accordance with the traditional laws adhered to and traditional customs observed by the group or groups, as the holders of native title rights in relation to the land and waters of the area.
This right is not readily identifiable hence it cannot be prima facie established. 

I now turn to consider the native title rights and interests claimed non-exclusively in respect of Area B. Schedule E says:

“Area B rights 
The native title rights and interests which are claimed in relation to Area B are all the rights claimed above in relation to Area A, except the right to possess, occupy, use and enjoy the area as against the whole world and the rights set out at paragraphs 9), 18), 19), and 33) and the right hunt, gather or take fauna, in so far as such right is contained within the paragraphs 3), 4), 6), 7), 21), 22) and 35).”

I note that each right claimed at paragraphs 3), 4), 6), 7), 21), 22) and 35) are claimed subject to the above qualification that the right hunt, gather or take fauna is not claimed as well as the qualifications at the commencement of Schedule E. 

Having regard to the definition of Area B the qualifications at the commencement of Schedule E may well result in many of the rights and interests claimed in respect of Area B being restricted. 

The native title rights and interests in relation to Area B comprise:

2}	A right to occupy the area;
3)	A right to use the area;
4)	A right to enjoy the area;

Not established

These rights are not readily identifiable and hence it follows that they cannot be prima facie established.  

However, I note that the use and enjoyment of the land is probably reflected elsewhere in Schedule E in activities such hunting, fishing, gathering and accessing the area.

5)	A right to be present on or within the area;
6)	A right to hunt in the area;
7)	A right to fish in the area;  
Established

Based on the same information referred to under para 1) above (Schedule G and the additional affidavits) I am satisfied there is adequate information to support the prima facie establishment of the rights claimed at paras. 5) – 7) above in respect of Area B.

However, the rights at 6) and 7) are so qualified that they are effectively excluded from the claim. I say this because the applicants do not claim the right hunt, gather or take fauna, in so far as such right is contained within those paragraphs.

I propose directing that a note be included on the Register noting this qualification. 

8)  A right to make decisions about the use of the area by members of the Aboriginal society to which the native title claim group belong;

Established

Schedule G provides a summary of the activities the native title claim group currently carries out in relation to the claim area and the activities include maintaining, conserving and protecting the significant and physical attributes of the area and places, works and objects within the area. I believe that these activities must involve the making of decisions about the use of the area and who may be permitted access. I see that this right is limited to members of the Aboriginal society to which the native title claim group belong. 

I note that [name withheld] says in her affidavit:
“6.	6.	[People who want to travel and camp in the claim area must ask a Ngarlawangga person for permission first.]

10	[If people take food or medicine from the claim area and don’t give some to Ngarlawangga People, they will get into trouble.] 

11	[The same applies to things like cutting wood.]
[Please note that this is a summary of the contents of the relevant paragraphs of the affidavit.]

I am satisfied there is sufficient information in the application and in the additional material to support the prima facie establishment of the above right in Area B.

10) A right to invite and permit others to have access to and participate in or carry out activities in the area;

Not established

This right is not limited to members of the Aboriginal society to which the native title claim group belongs as is that claimed at 8) above.

This right involves the control of access and hence, in my opinion, cannot be prima facie established in respect of areas where exclusive possession is not claimed or cannot be sustained. 

11) A right of access to the area;	
12) A right to live within the area;
13) A right to erect shelters upon or within the area;

Established

The applicants claim the right to live within the area and erect shelters upon or within the area. A question which arises here is whether the right to live on the land or erect shelters necessarily amounts to a right to control access to and use of the claim area. To the extent that it would do so, such a right is not prima facie capable of being established over areas for which a claim to exclusive possession could not be sustained. 

I note that, despite the absence of exclusive possession in that case, the majority decision in Ward did not preclude the recognition of native title rights to reside upon the claim area; nor is there is anything in the description of these right which conveys to me an intention or capacity on the part of the members of the native title claim group to control access to or use of those areas. Rather, rights to control access to or use and enjoyment of the claim area are claimed separately at paras. (18) and (19) in respect of Area A.

It follows that I am satisfied that the rights claimed above are capable of being prima facie established. 

There is evidence for this right in Schedules F and G and the affidavits I have referred to above. For instance in Schedule G the applicants’ state that the group currently carryout the activities set out in para (ii):
	“(ii) moving about, living, residing, erecting shelters and camping”

The additional information in the affidavits of [name withheld], [name withheld] and [name withheld] adequately support the conduct of these activities by the native title claim group. See for instance [name withheld] affidavit paras 4 – 9.

Based on the above information I am satisfied there is sufficient information to support the prima facie establishment of the rights claimed at paras. 12 and 13 above in respect of Area B.

14) A right to camp upon or within the area;
15) A right to move about the area;
16) A right to engage in cultural activities within the area;
17) A right to conduct and participate in ceremonies and meetings within the area;

Established

Based on the information in Schedule G and in the affidavits to which I have referred above I am satisfied there is sufficient information to support the prima facie establishment of the rights claimed at paras. 14) – 17) above in respect of Area B.

20) A right to visit, care for and maintain places of importance and protect them from physical harm;
21) A right to take traditional resources, other than minerals and petroleum from the
area;	
22) A right to take fauna;
23) A right to take flora (including timber);
24) A right to take soil;
25) A right to take sand;
26) A right to take stone and/or flint;
27) A right to take clay;
28) A right to take gravel;
29) A right to take ochre;
30) A right to take water;
31) A right to manufacture traditional items from the resources of the area;

Established
I refer to para (iv) of Schedule G which is set out above and to the affidavits to which I have referred. 

I note that para 21) does not claim minerals and petroleum. Further Schedule E states that the native title rights and interests claimed in the application are subject to and exercisable in accordance with:
1)   the common law, the laws of the State of Western Australia and the Commonwealth of Australia;
2)   valid interests conferred under those laws.

Having regard to the above I am satisfied that the applicants do not intend to, and do not claim, minerals petroleum or gas owned by the Crown. 

I am satisfied there is sufficient information to support the prima facie establishment of the rights claimed at paras. 20) – 31) above in respect of Area B.

However, the rights at 21) and 22) are, in addition to the above qualification, further qualified in respect of Area B. The applicants do not claim the right to hunt, gather or take fauna, in so far as such right is contained within those paragraphs.

I propose directing that a note be included on the register noting the latter qualification. 

32) A right to trade in the resources of the area;

Not established

The right to trade in the resources of an area, has been considered by the Court. In Commonwealth of Australia v Yamirr (1999) 101 FCR 171, the Full Federal Court in obiter noted that
“It may well be right… and as seems logical, to view the right to trade as an ‘integral part’ or integral aspect of a right of exclusive possession”.

At first instance in this case, Olney J commented in obiter that the trade consisted of the exchange of goods and did not amount to a right or interest in relation to land or waters as required by s. 223. This finding was noted by Merkel J on appeal but his Honour made no comment about it. This issue was not put before the High Court. However, based on the obiter comments of the Full Court it seems that the rights of trade can only be established over areas where a claim to exclusive possession can be sustained. 

Further, even if I am wrong in the above view, there is insufficient information available to support the prima facie establishment of this right (see above under Area A).

34) A right to maintain, conserve and protect significant places and objects located within the area;

Established 

A question arises here as to whether the right to protect significant places and objects located within the area necessarily amounts to a right to control access to and use of the claim area. To the extent that it would do so, such a right is not prima facie capable of being established over areas for which a claim to exclusive possession could not be sustained. There nothing in the description of this right which conveys to me an intention or capacity on the part of the members of the native title claim group to control access to or use of those areas. Indeed, the applicant has specifically excluded such rights in respect of this Area B.  I say this because the rights to control access to or use and enjoyment of the claim area are reflected separately at paras. 18) and 19) and those rights are specifically excluded in respect of Area B.

Schedule G states in part that the native title claim group currently carryout the following activities in relation to the land and waters: 
“(iii) conducting and engaging in cultural activities, ceremonies, rituals,  meetings and teaching of, maintaining, conserving and protecting the significant and physical attributes of the area and places, works and objects within the area;”(italics added)
I also refer to the affidavits to which I have referred above. I am satisfied that they demonstrate that the native title claim group has a close association with their country and that this supports the applicants’ statements that the group currently carryout the activities set out in para (iii) of Schedule G. 
I am satisfied there is sufficient information before me in the application and affidavits to support the prima facie establishment of the right claimed at para 34) in respect of Area B.

35) A right to enjoy all the features, benefits and advantages inherent in the environment of the area;
Not established
This right is not readily identifiable hence it cannot be prima facie established. 

36) A right to be identified and acknowledged, in accordance with the traditional laws adhered to and traditional customs observed by the group or groups, as the holders of native title rights in relation to the land and waters of the area.

Not established

This right is not readily identifiable hence it follows that it cannot be prima facie established. 

Each prima facie established right claimed at paragraphs 6), 7), 21) and 22) in respect of Area B are subject to the qualification that the right hunt, gather or take fauna is not claimed.

Area C rights
The native title rights and interests which are claimed in relation to Area C are all the rights claimed above in relation to Area A, except the right to possess, occupy, use and enjoy the area as against the whole of the world and the rights set out in paragraphs 9), 18), 19) and 33).

The following native title rights and interests are prima facie established in respect of Area C based on the same information and for the same reasons as appear in respect of those rights under Area B: 5) – 7), 11) – 17), 20) – 31) and 34).

The following native title rights and interests claimed are not prima facie established in respect of Area C: 2) – 4), 8), 10), 32), 35) and 36).  This conclusion is based on the same information and is for the same reasons as appear in respect of those rights under Area B: 

I propose listing the above native title rights and interests individually in register. 
I note that the rights claimed at paragraphs 6), 7), 21) and 22) in respect of Area C are not subject to the qualification that they are in respect of Area B, i.e.  the right hunt, gather or take fauna is not excluded

As many of the native title rights and interests claimed are prima facie established the application meets the requirements of s. 190B(6).

Result:	Requirements met.

Traditional physical connection:  S. 190B(7)

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

Reasons relating to this condition

The requirements of this section are such that I must be satisfied that at least one member of the native title claim group currently has, or previously had, a traditional physical connection with any part of the land or waters covered by the application.

‘Traditional physical connection” is not defined in the Act. I interpret this phrase to mean that physical connection should be in accordance with the particular traditional laws and customs relevant to the claim group. The Explanatory Memorandum to the Native Title Act 1993 explains that this “connection must amount to more that a transitory access or intermittent non-native title access” (paragraph 29.19 of the 1997 EM on page 304).

Although this information might usually be provided at Schedule M of the application, as the applicant has not included a Schedule M. I have had regard to information at Schedules F and G and in affidavits and in affidavits from members of the claim group that were provided to the Registrar. Schedule G lists activities currently being carried out by the native title claim group. Schedule F briefly sets out the factual basis for the claimants to continue carrying out these activities and the native title rights and interests claimed at Schedule E. The persons named as the applicant depose in the affidavits filed with the application that the statements contained in the application are true.

In her affidavit provided to the Registrar as additional material, [name withheld] describes her membership of the claim group and states that she lived on her country when growing up. [Name withheld] also provides information that she continues to spend a large amount of time in the claim area carrying out activities and rituals under traditional law and custom.

I must be satisfied only that at least one member of the claim group currently has or previously had a traditional physical connection with any part of the land or waters covered by the application. On the basis of the information contained in Schedules F and G together with the information provided in [name withheld] affidavit, I am satisfied that the requirements of this condition of the registration test have been satisfied.

Result:	Requirements met.

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

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

Section 61A contains four sub-conditions. Because s. 190B(8) asks the Registrar to test the application against s61A, the decision below considers the application against each of these four sub-conditions.

S61A(1)- Native  Title Determination 

Reasons relating to this sub-condition

A search of the Native Title Register conducted on 31 May 2005 revealed that there was an overlap of 0.00186 square kilometres with the Nharnuwangga Wajarri and Ngarlawangga application (WG0072/98, WC99/13). The Tribunal's Geospatial Analysis & Mapping Branch advise in their assessment dated 22 April 2005 that the this is a technical overlap and along with others will be resolved in the future.  In any event Schedule B to the application notes that this area is excluded from the area subject to claim by the applicant to Ngarlawangga (WC05/3).

Result:	Requirements met.

S. 61A(2)- Previous Exclusive Possession Acts (PEPAs)

Reasons relating to this sub-condition

Schedule B of the application refers to Attachment B, which provides details of the tenures that are excluded from the claim area. For the reasons set out at s. 190B(2) these exclusions are sufficiently clear to provide reasonable certainty about all the tenure excluded. Area subject to previous exclusive possession acts are excluded

Result:	Requirements met.

S61A(3) – Previous Non-Exclusive Possession Acts (PNEPAs)

Reasons relating to this sub-condition

The applicant is not seeking exclusive possession over areas the subject of a previous non-exclusive possession act.

Result:	Requirements met.

S61A(4) – Areas to which sections 47, 47A or 47B may apply

Reasons relating to this sub-condition
Schedule L to the application includes a statement that the applicant does not have details of:

(a)	any area for which a pastoral lease is held by or on behalf of the members of the native title claim group;
(b)	any area leased, held or reserved for the benefit of Aboriginal peoples or Torres Strait Islanders and occupied by or on behalf of the members of the native title claim group;
(c)	any vacant crown land occupied by the members of the native title claim group; and 
(d)	any area mentioned in paragraph (a), (b) or (c) over which the extinguishment of native title is required by ss 47, 47A or 47B of the Act to be disregarded.

Schedule B to the application includes a statement that the application area includes those areas to which the non-extinguishment provisions apply, including ss. 47, 47A and 47B of the Act. This Schedule notes that particulars of these areas will be provided prior to hearing.

Read together, I am satisfied that the applicant satisfactorily seeks to invoke the provisions at ss.47, 47A and 47B of the Act.

Result:	Requirements met

No claim to ownership of Crown minerals, gas or petroleum:  S. 190B(9)(a)

The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that:
(a)	to the extent that the native title rights and interests claimed consist or include ownership of minerals, petroleum or gas – the Crown in the right of the Commonwealth, a State or Territory wholly owns the minerals, petroleum or gas;

Reasons relating to this sub-condition

This section requires that the application must not disclose, and I must not be otherwise aware, that there is any native title right or interest claimed in this application which either consists of or includes a claim to ownership over minerals, petroleum or gas wholly owned by the Crown in right of the Commonwealth, a State or Territory.

Information excluding such ownership is usually found at Schedule Q to the application, but no Schedule Q is included in the application before me.

However, Schedule E includes a statement that:
“The native title rights and interests claimed in this Application are subject to and exercisable in accordance with:
1)  the common law, the laws of the State of Western Australia and the Common wealth of Western Australia;

2)  valid interests conferred under those laws; and 

3) the body of traditional laws and customs of the Aboriginal society under which rights and interests are possessed and by which native title claim group have a connection to the area of land and waters subject of this Application.

Although a statement specifically excluding minerals and petroleum owned by the Crown would have been preferable, I am satisfied that, having regard to the native title rights and interests  claimed, the statement at Schedule E is sufficient to exclude a claim to ownership of minerals, petroleum and gas wholly owned by the Crown. I say this because it is apparent that the claim in relations to resources is intended to be limited to traditional resources. At 21) claims to minerals and petroleum are specifically excluded.

I am therefore satisfied that the requirements of this section have been met.

Result:	Requirements met.

No exclusive claim to offshore places:  S. 190B(9)(b)

The application and accompanying documents must not disclose, and the Registrar must not be otherwise aware, that:
(b)	to the extent that the native title rights and interests claimed relate to waters in an offshore place – those rights and interests purport to exclude all other rights and interests in relation to the whole or part of the offshore place;

Reasons relating to this sub-condition

This section requires that the application must not disclose, and I must not otherwise be aware, that if any native title rights or interest claimed in this application which relates to waters on an offshore place, that those rights and interests purport to exclude all other rights and interests in relation to the whole or part of the offshore place.

Information pertaining to this section is generally found at Schedule P. This application contains no Schedule P, but I note that the area described at Schedule B, Attachment B and depicted in the map at Schedule C, Attachment C, confirm that no offshore place is covered by the application.

Result:	Requirements met.

Native title not otherwise extinguished:  S. 190B(9)(c)

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

Reasons relating to this sub-condition

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

In addition, Schedule B to the application excludes from the application area any area in relation to which native title rights and interests have otherwise been wholly extinguished.

I am satisfied that the application meets the requirements of this condition.

Result:	Requirements met

[End of document]