Mandandanji People #2 - National Native Title Tribunal

National Native Title Tribunal 

REGISTRATION TEST MINUTE 

and 

DELEGATE DECISION SUMMARY 

TO DELEGATE 

Chris Loorham 

FROM CASE MANAGER Joanna Boileau 

DATE 9 February 2000 

Application Name Mandandanji People #2 

Name(s) of Applicant(s) 

Mrs Miranda Mailman, Mrs Violet Costa, Mrs Sylvia 

McCarthy, Mr Lawrence Peckett, Mrs Lorraine 

Tomlinson, Mr Percy Anderson, Mrs Bertha Lacey 

Region SE QLD NNTT No QC97/50 

Date Application Made 28 October 1997 Fed Court No QG6157/98 

The Delegate has considered the application against each Registration Test condition 

contained in s.190B and s.190C of the Native Title Act 1993 and makes the following 

decision: 

C:\Documents and 1 Settings\andrewn\Desktop\test docs\Mandandanji People #2.doc

Brief history of the application 

This application was the second lodged on behalf of the Mandandanji People, on 28 

October 1997. The first application of the Mandandanji People (QC97/30) was 

lodged on 12 September 1997 and withdrawn on 7 July 1998. The notification of 

interested persons and organisations has not yet commenced. An amended 

application was lodged in the Federal Court on 30 September 1999 and leave to 

amend was granted by the Court on 13 October 1999. 

In making this decision I have considered material provided directly to the Tribunal 

for my consideration in the application of the registration test and in some instances 

relied on this material in making this decision. This material included: the affidavits 

of (name deleted) dated 8 November 1999, (name deleted) dated 25 June 1999 and 

(name deleted) dated 9 September 1999; a letter from (name deleted) dated 11 

November 1999 and a letter from the applicants legal representatives dated 30 

November 1999 in relation to this letter. 

After agreement was reached with the State of Queensland (‘State’) about the 

conditions of release of this material, copies of the documents were provided to the 

State. By letter of 10 February the State indicated to the Tribunal that it did not wish 

to respond to the material. (See State of Western Australia v Native Title Registrar & 

Ors [1999] FCA 1591 – 1594 regarding the Tribunals responsibility to afford the State 

an opportunity to comment on material it considers). 

Documents considered 

Relevant documents held in: 

♦ Working File, QC97/50, Part 1 

♦ Personnel File, QC97/50 

♦ Registration Test Compliance File, QC97/50 

♦ Working File, QC 97/33 

♦ Other tenure information acquired by the Tribunal in relation to the area covered 

by this application 

♦ The National Native Title Tribunal Geospatial Database 

♦ The Register of Native Title Claims 

♦ The Native Title Register 

♦ The Register of Indigenous Land Use Agreements 


Decision of Delegate 

For the reasons set out below the Application for Native Title Determination 

Mandandanji People #2 IS ACCEPTED for registration pursuant to s.190A of the 

Native Title Act 1993 

DELEGATE 

DATE 


A. Procedural Conditions 

190C2 

Information, etc, required by section 61 and section 62: 

The Registrar must be satisfied that the application contains all details and other 

information, and is accompanied by any affidavit or other document, required by 

sections 61 and 62. 

Reasons for Decision 

I have examined all the details and other information together with the affidavits and 

other documents accompanying this application. I find that s61 and s62 have been 

complied with. The application contains all the information etc required by s61 and 

s62 as I have outlined below. 

s.61(3); Names of applicant(s) and address for service is provided. 

s.61(4); Description of persons in native title claim group is provided. 

s.61(5); Application is in prescribed form, lodged in Federal Court, contains 

prescribed information and is accompanied by any prescribed documents 1 

s.62(1)(a) The application is accompanied by affidavits which comply 

s.62(1)(b); Details required in s.62(2) above are provided. 

s.62(1)(c); Details of physical connection are provided. 

Details required in section 62(2) 

62(2)(a)(i); Information which identifies the boundaries of the area covered by the 

application is provided. 

62(2)(a)(ii); Information which identifies any areas within those boundaries that are 

not covered is provided. 

62(2)(b); A map showing the external boundaries of the area covered by the 

application is provided. The map and other information is consistent in their 

description of the area. 

62(2)(c); IF there is information alerting the Delegate about searches carried out by 

the applicant to determine existence of any non-native title interests, are details 

provided Details are provided. 

62(2)(d); A description of the native title rights and interests claimed, (and see 

reasons at 190B(6) below) 

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: 

62(2)(e)(i); the claim group have, and their predecessors had, an association 

with the area. 

1 Note that pre 30.09.98 applications are deemed to have been filed in the Federal Court. 

Note that “prescribed information” is that which is required by s.62(2) as set out in the text of this 

minute document. 


62(2)(e)(ii); traditional laws and customs exist that give rise to the claimed 

native title. 

62(2)(e)(iii); the claim group has continued to hold native title in accordance 

with laws and customs. 

62(2)(f); IF there is information alerting the Delegate that activities are carried on in 

relation to the land or waters, are details of those activities provided Details are 

provided. 

62(2)(g); IF there is information alerting the CM that the applicant is aware of other 

applications to the High Court etc, are details provided There is no information 

alerting me that the applicants are aware of other applications. 

62(2)(h); IF there is information alerting the Delegate that the applicant is aware of 

any Future Act Notices given pursuant to the amended Act over the area, are details 

provided There is no information alerting me that the applicants are aware of any 

Future Act Notices. 

For the reasons set out against the conditions listed above the Application passes the 

procedural requirements of section 190C2 of the Act. 



190C3 

(b) 

(c) 

Common claimants in overlapping claims: 

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. 

This provision was recently considered by French J. in Strickland v. Native Title 

Registrar [1999] FCA, 4/11/99 when his honour held that the reference to “when the 

current application was made” in s190C3 (b) is a reference to the date when the 

application was made (ie. filed in) the Federal Court. His honour also held that all “old 

act” applications (being those applications lodged with the Tribunal prior to the 

commencement of the amendments to the Act on 30 September 1998) are taken to 

have been “made” when the amended Act commenced on 30 September 1998, this 

being the date they are deemed to have been made to the Federal Court (refer Part 3, 

Item 6 of the Transitory Provisions of the Act); 

There are five claims that overlap with this application. These are 

QC97/49 Bidjara People #3 

QC97/55 Iman People #2 

QC98/42 Bigambul People 

QC99/4 Western Wakka Wakka People 

QC99/5 Barrunggam People 

190C3(a) and 190C3(b) require identification of any previous overlapping claims that 

were entered on the Register of Native Title Claims when the current application was 

made. This application was lodged with the Tribunal on 28 October 1997. Four of the 

overlapping applications, QC97/55, QC98/42, QC99/4 and QC99/5, were lodged after 

the current application was made. The fifth application (QC97/49) was lodged on 28 

October 1997, the same date as the current application . Following his honours 

reasoning in Strickland v Native Title Registrar 4 November 1999 [FCA 1530], the 

relevant date when both QC97/49 and QC97/50 were “made “ for the purposes of this 

section is 30 September 1998. Therefore QC97/49 cannot be considered a ‘previous’ 

application for the purposes of s.190C3. 

A search of the Geospatial Database and Register of Native Title Claims reveals that 

there are no previous overlapping applications entered on the Register as a result of 

consideration of the previous application under s 190A. 

As a consequence I am not required to consider whether any members of this native 

title claim group are members of native title claim groups for other applications. 

The application passes this condition. 


190C4(a) 

and 

190C4(b) 

Certification and authorisation: 

The Registrar must be satisfied that either of the following is the case: 

(a) 

(b) 

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 

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. 

The applicants have elected not to have this claim certified pursuant to S190C4(a), instead 

they have elected to provide evidence of authorisation pursuant to S190C4(b). 

190C5 

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 sets out the grounds on which the Registrar should consider that it has 

been met. 

Reasons for the Decision 

In order to satisfy this condition there must be a statement that the applicant is a 

member of the claim group and is authorised to make the application, and deal with 

matters arising in relation to it, by all the other persons in the native title claim group. 

Each of the applicants provides such a statement at Paragraph 4 of their affidavits 

dated 9 September 1999, attached to the amended application, filed in the Federal 

Court on 30 September 1999. 

At paragraph 5 of their affidavits the applicants set out the grounds on which the 

registrar should consider the requirements of 190C4(b) have been met. They state that 

they were approved and authorised by the claim group to be applicants on behalf of the 

Mandandanji people at a meeting of the Mandandanji traditional owners held on 29 and 

30 April 1999. 

Further information is provided at Attachment 1 and in the affidavit of (name deleted) 

dated 23 September 1999 (at Attachment R). The minutes of the meeting of 29 and 30 

April 1999, copies of the advertisements of the meeting and an attendance sheet are 

provided at Attachment 1. These documents are marked LFT3, LFT2 and LFT1 

respectively. At the meeting of 29 and 30 April 1999 a motion was moved and 

unanimously carried that the meeting authorise the nine applicants to be the 


epresentatives for the Mandandanji claim. 

The affidavit of (name deleted) states that she is the secretary of the Mandandanji 

Traditional owners Aboriginal Corporation, and that she received letters from (name 

deleted) and (name deleted) advising that they no longer wish to be an applicant in 

these proceedings (paras 7 and 8). Copies of these letters are at Attachment 1 of the 

amended application (marked LT5 and LT6). 

At paragraph 5 of her affidavit (name deleted) states that some of the families of the 

Mandandanji people were not in attendance at the meeting, however they provided 

letters of apology and authorisations to speak on their behalf (copies are provided at 

Attachment 1, and marked LFT4). These statements provide sufficient grounds for me 

to be satisfied that the requirements for authorisation have been met. 

For the reasons set out above I am satisfied that the applicants are authorised in 

accordance with s. 251B to make the claim and deal with matters arising. 



B. Merits Conditions 

190B2 

Description of the areas claimed: 

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. 


External Boundaries: 

Map : 

The amended application includes a map at Attachment C depicting the external 

boundaries of the claim area. This is a copy of a map prepared by the Tribunal’s 

Geospatial Unit and includes clearly marked co-ordinates, a scale and an inset map 

locating the claim area within the State of Queensland. The commencement point is 

marked, linking the map to the written description at Attachment B1 and the list of coordinates 

at Attachment B. 

Given that the co ordinates of the claim area boundaries can be assessed with relative 

accuracy from the grid references on the map and can be read in conjunction with the 

list of coordinates at Attachment B, I am satisfied that the map submitted with the 

application meets the requirements of s62 (2)(b) as the boundaries of the areas 

covered by the application can be identified. 

Written description : 

In addition to a map defining the external boundaries of the claim, at Attachment B1 of 

the amended application the applicants have provided a general description of the 

external boundary by reference to the points in the list of co-ordinates at Attachment B. 

I am satisfied that the physical description of the external boundaries meets the 

requirements of s62 (2)(a)(i). 

Internal Boundaries : 

At Attachment B2, the applicants have provided information identifying the internal 

boundaries of the claimed area by way of a formula that excludes a variety of tenure 

classes from the claim area and from the claim for exclusive possession:- 

1. Where, 

(a) Subject to clause 2 below, any land or waters covered by the application are the 

subject of: 

(i) a scheduled interest; 

(ii) a freehold estate; 

(iii) a commercial lease that is neither an agricultural lease nor a pastoral lease; 

(iv) an exclusive agricultural lease or an exclusive pastoral lease; 

(v) a residential lease 

(vi) a community purpose lease; 

(vii) a lease dissected from a mining lease and referred to in s.23B(2)(vii) of the 


Native Title Act 1993; 

(viii) any lease (other than a mining lease) that confers a right to exclusive 

possession over particular land or waters 

which was validly granted or vested on or before 23 December 1996; 

OR 

(c) Subject to clause 2 below, any land or waters covered by the application are the 

subject of the valid construction or establishment of any public work, where the 

construction or establishment of the public work commenced on or before 23 

December 1999 (Sic) (This date should read 1996; this is correct in the draft 

amended application received by the Tribunal on 21 July 1999.) 

then that area is excluded from the application. 

2. Where 

(a) an act specified in clauses 1(a) and 1(b) above falls within the provision of: 

(i) s.23B(9) exclusion of acts benefiting Aboriginal peoples or Torres Strait 

Islanders; 

(ii) s.23B(9A) establishment of a national park or state park; 

(iii) s.23B(9B) acts where legislation provides for non-extinguishment; 

(iv) s.23B(9C) exclusion of Crown to Crown grants; or 

(v) s.23B(10) exclusion by regulation, 

OR 

(b) an act referred to in clauses 1 and 2 covers land or waters referred to in: 

(i) s.47 pastoral leases held by native title claimants 

(ii) s.47A reserves etc covered by claimant applications; or 

(iii) s.47B vacant crown land covered by claimant applications; 

the area covered by the act is not excluded from the application. 

3. The application does not claim possession, occupation, use or enjoyment to the 

exclusion of all others over areas which are or were subject to a valid previous nonexclusive 

possession act attributable to the Commonwealth or to a State or Territory 

where a law of that State or Territory has made provision as mentioned in section 23I in 

relation to the act. 

It is my view that the description of areas excluded as set out under 1 above can be 

objectively applied to establish whether any particular area of land or waters within the 

external boundary of the application is within the claim area or not. This may require 

considerable research of tenure data held by the particular custodian of that data, but 

nevertheless it is reasonable to expect that the task can be done on the basis of the 

information provided by the applicant. 

I note that the applicants make exceptions to the particular exclusions cited in the 

application by claiming the benefit of s.47, s.47A and s.47 of the Act. The applicants do 

not identify specific “parcels” of land where any of s.47, s.47A or s.47B apply, but rather 

rely on reference to class tenures. Consistent with the reasoning set out above in 

respect of identifying areas excluded from the claim, I am of the view that identifying the 

areas so excepted from the exclusions in the manner done by the applicant does allow 

specific geographic location to be subject to tenure research. 


I consider that the description provides a reasonable level of certainty and is sufficient 

to pass the requirements of s190B2. 

Identification of the native title claim group: 

190B3 

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. 

An exhaustive list of names of the persons in the native title claim group is not provided 

in the amended application. Consequently, the requirements of s.190B3(a) of the Act 

are not met. 

In the alternative, s.190B(3)(b) requires the Registrar to be satisfied that the persons in 

the native title claim group are described sufficiently clearly so that it can be 

ascertained whether any particular person is a member of the group. 

The native title claim group is described at Attachment A of the amended application as 

follows. 

‘The native title claim group is defined as all those people who are descendants of 

(names deleted).’ 

I have taken descendants to mean biological descendants. 

The applicants state that (name deleted) and (name deleted) are both descendant from 

(name deleted), also known by the Aboriginal name (name deleted). 

Further details of the individuals and families who are the descendants of the apical 

ancestors listed above are provided at paragraph 2 of Attachment A. At paragraph 3 of 

Attachment A, a number of named individuals and their descendants are specifically 

excluded from the native title claim group. 

I am satisfied that the names provided for each apical ancestor are sufficient to identify 

the relevant person, and therefore it is possible with inquiry to ascertain whether a 

person is a descendant of one of those named. 

With regard to the persons who have been excluded from the group, it is likewise 

possible to ascertain whether a person is either one of those named or a descendant of 

the named person. 

I am satisfied that the overall description of the claim group is sufficiently clear to 

ascertain whether any particular person is in the group. 



190B4 

Identification of claimed native title 

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 be readily identified. 


Attachment E of the amended application lists thirteen specific native title rights and 

interests claimed by the applicants. 

Under this condition, I must be satisfied that the native title rights and interests detailed 

in Attachment E can be readily identified. It is insufficient to merely state that these 

native title rights and interests are ‘all native title interests that may exist, or that have 

not been extinguished at law’. 

The description contained at Attachment E, describes the native title rights and 

interests as: 

1. The possession, occupation, use and enjoyment of the whole of the country within 

the area of the application, including: 

(I) land; 

(ii) waters; 

(iii) artesian, sub-artesian and other underground waters; 

(iv) flora; 

(v) fauna; 

(vi) items of the Queensland Estate and Landscapes Queensland which constitute 

the cultural heritage of the Mandandanji people. 

2. A right to protect and manage sites and places which the Mandandanji people 

determine are of cultural significance, including spiritual places, sacred sites, burial 

or body disposal places and ceremonial sites, including a right to perform 

customary ritual and ceremony at those places and a right, when deemed 

necessary, to exclude non-Mandandanji people from those places; 

3. A right to hunt, fish, harvest and collect natural resources, including water and 

minerals above and below the surface, for customary, domestic and economic 

purposes. 

4. A right to environmental management of the determination area, including: 

(I) to control the use of the environment; 

(ii) to negotiate, participate in, be consulted on and make decisions on matters of 

environmental use and changes to uses; 

(iii) to restrict certain environmental uses, including commercial and recreational 

uses; and 

(iv) to visit, protect and manage Mandandanji cultural heritage sites, including 

habitation sites. 

5. A right to conduct those activities and enterprises which provide for the preservation 

of environmental and cultural integrity and sustainability according to customary 

Mandandanji law. 

6. A right to live on the determination area and to construct residences, shelters and 

other structures for use in association with the exercise of their native title rights. 


7. A right to have access to the determination area and to control access to the 

determination area by others. 

8. A right to live according to Mandandanji culture (including Mandandanji legal and 

political systems), to exercise self-determination and to have these rights respected 

by others. 

9. A right to own and protect all intellectual property over cultural knowledge of the 

Mandandanji people, including names, words and stories and knowledge about 

animals, plants, areas and places within the determination area. 

10. A right to repatriate and deal with the remains of deceased Mandandanji people 

within the determination area. 

11. A right to assert, inherit and confer native title rights and interests in the 

determination area in accordance with Mandandanji custom, tradition and culture 

12. A right to maintain, protect, control and prevent misuse of cultural and spiritual 

knowledge of the native title group associated with the land and waters covered by 

the application. 

13. A right to educate future generations and to pass on to others knowledge about the 

land and waters covered by the application. 

The particularised description of these rights and interests is qualified as follows. 

• The application does not make any claim to ownership of minerals, petroleum or 

gas wholly owned by the Crown; (stated at Schedule Q) 

• Where an area is or was subject to a valid previous non-exclusive possession act 

the native title claim group does not claim possession, occupation, use or 

enjoyment of the area to the exclusion of all others (stated at Attachment B2) 

• The relationship between the native title rights and interests described in 

paragraph 3 (and at Attachment E) and the other interests described in paragraph 4 

is that they are concurrent rights and interests to the part of the determination area 

to which other interests relate, but by operation of legislation or by the nature and 

extent of other interests created by the Crown, regulation, control, curtailment, 

restriction, suspension or postponement may operate upon the exercise of some of 

the concurrent rights. (stated at Attachment J, paragraph 5) 

• 

I have taken the “items of the Queensland Estate and Landscapes Queensland which 

constitute the cultural heritage of the Mandandanji people” described at 1(vi) above to 

mean those items that are listed in the relevant register pursuant to the Cultural 

Records (Landscapes Queensland and Queensland Estate) Act 1987. I note that s32 

provides that indigenous rights are unaffected by this Act. 

I consider the thirteen specific rights and interests identified by the applicants to be 

clearly defined and therefore readily identifiable. 



190B5 

Sufficient factual basis: 

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) 

(b) 

(c) 

that the native title claim group have, and the predecessors of those persons 

had, an association with the area; 

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; 

that the native title claim group has continued to hold the native title in 

accordance with those traditional laws and customs. 


There are three criteria to consider in determining whether or not I am satisfied that 

there is a sufficient factual basis to support the applicants’ assertion about the 

existence of the native title rights and interests listed at Schedule E of this application. 

In considering the requirements of s190B5, in addition to the amended application, I 

have had particular regard to the affidavits of (name deleted) (sworn on 9 September 

1999), (name deleted) (sworn on 25 June 1999) and (name deleted) (sworn on 8 

November 1999). 

190B(5)(a) - that the native title claim 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. 

At Attachment F of the amended application, the applicants state that ‘the native title 

claim group has and (its ) predecessors of those persons had, an association with the 

area subject to this application’. 

Attachment F lists a number of activities currently carried out by members of the claim 

group in support of this statement. They include: 

• visitation and maintenance of cultural sites; 

• traditional hunting and fishing; 

• collection and use of native flora and fauna and other materials from the land and 

waters for traditional purposes; 

• cultural heritage work including protection of burial sites, site clearance and cultural 

heritage monitoring, reports and surveys; and cultural heritage education for 

Mandandanji people; 

• knowledge, access and enjoyment of sites and items constituting the cultural 

heritage of the Mandandanji People; 

• fossicking; 

• naming of sites and places. 

These activities are also described in Attachment G. 

Further evidence of the association of members of the claim group with the claim area 


is provided in the affidavits of (name deleted) (paras 2, 3, 8), (name deleted) (para 8) 

and (name deleted) (paras 2, 12). 

The material referred to above (in particular the affidavits) makes reference to specific 

places within the area of the application. On the basis of the material considered above, 

I am satisfied that there is a factual basis which supports the assertion that the native 

title claim group have, and the predecessors of those persons had, an association with 

the claim area. 

190B(5)(b) – that there exist traditional laws acknowledged by, and traditional customs 

observed by, the native title claim group that give rise to the claim to native title rights 

and interests. 

This subsection requires me to be satisfied that: traditional laws and customs exist; that 

those laws and customs are respectively acknowledged and observed by the native title 

claim group, and that those laws and customs give rise to the claim to native title rights 

and interests. 

At Attachment F of the amended application it is stated that there exist traditional laws 

acknowledged by, and traditional customs observed by, the native title claim group that 

give rise to the claimed native title. 

Attachment F lists a number of activities currently carried out by members of the claim 

group in support of this statement. They include: 

• visitation and maintenance of cultural sites; 

• maintaining knowledge of traditional customs, teachings and law; 

• traditional hunting and fishing; 

• collection and use of native flora and fauna and other materials from the land and 

waters; 

• use and knowledge of the scientific and medicinal properties of native flora; 

• cultural heritage work including protection of burial sites, site clearance and cultural 

heritage monitoring, reports and surveys and cultural heritage education for 

Mandandanji people; 

• knowledge, access and enjoyment of sites and items constituting the cultural 

heritage of the Mandandanji People; 

• education of younger members of the native title claim group in the ways of 

Aboriginal culture, tradition and practices; 

• naming of sites and places; 

• negotiations with the various interest and stakeholders in relation to activities on the 

claim area. 

A number of these activities are also described in Attachment G. Further details of 

these activities are outlined under s.190B5(c) below. 

Further evidence of the existence of traditional laws and customs acknowledged and 

observed by the members of the claim group is provided in the affidavits of (name 

deleted) (paras 5, 6, 7, 8), (name deleted) (paras 9, 10, 11) and (name deleted) (paras 

3. – 13). For example, (name deleted) recalls observing the older people still living a 

traditional lifestyle, bearing ceremonial scars on their bodies and speaking the 

traditional language of the Mandandanji . He also observed corroborees. He states that 

he learned about hunting, preparing bush tucker and bush medicines from his mother 

and grandmother. In his affidavit (name deleted) refers to the practice of traditional 

medicine (para 3), mortuary rights (para 11), hunting game and the manufacture of 

traditional weapons and artefacts (para 9); the burial of Mandandanji people on 


traditional country (para 11). 

I am satisfied that there is a factual basis which supports the assertion that traditional 

laws and customs exist that are respectively acknowledged and observed by the native 

title claim group, and that those laws and customs give rise to the claim to native title 

rights and interests. 

190B(5)(c) - that the native title claim group have continued to hold the native title in 

accordance with those 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. 

At Attachment F of the amended application the applicants assert that the native title 

claim group has continued to hold the native title in accordance with their traditional 

laws and customs. 

The details of current activities in relation to the claim area outlined in Attachments F 

and G and listed under s. 190B(5)(b) above provide evidence that the native title claim 

group has continued to hold the native title in accordance with those traditional laws 

and customs. 

Further evidence in support of this condition is provided in the affidavits of (name 

deleted) (paras 5, 6,7, 8), (name deleted) (paras 9, 10, 11) and (name deleted) (paras 3 

– 5, 7 – 10, 12). Activities referred to in the affidavits include: hunting; gathering bush 

foods; passing on traditional knowledge of significant sites and bush medicine; and 

tattooing of traditional skin markings. In his affidavit (name deleted) states that he is 

involved in maintaining Mandandanji culture and is president of the Mandandanji 

Traditional Owners Corporation (para 11). In his affidavit (name deleted) states that the 

(name deleted) family have continued to maintain the Mandandanji culture in 

accordance with traditional practices and custom (para 3). 

On the basis of the material outlined above, I am satisfied that there is a factual basis 

which supports the assertion that the native title claim group have continued to hold the 

native title in accordance with those traditional laws and customs. 


190B6 

Prima facie case: 

The Registrar must consider that, prima facie, at least some of the native title rights 

and interests claimed in the application can be established. 



‘Native title rights and interests’ are defined at s.223 of the Native Title Act. The 

definition is closely aligned with the issues I have considered above under s.190B5. I 

will draw on the conclusions I made under that section in my consideration of s.190B6, 

rather than reconsider these requirements against each individual right and interest 

sought. 

Under s.190B6 I must consider that, prima facie, at least some of the rights and 

interests claimed can be established. 

In deciding which native title rights and interests claimed can be prima facie established 

I have relied on the information contained in the amended application, in particular 

Attachment G, and the affidavits of (names deleted). 

Those affidavits provide sufficient material and information to satisfy me on a prima 

facia basis that a number of the native title rights and interests claimed by the 

applicants at Schedule E of the application can be established. In so finding I note that 

Attachment B2 expressly states that the rights and interests do not extend to excluding 

others in respect of any area where a valid previous non-exclusive possession act was 

done (outlined in my reasons for decision at 190B(4)). 

The three deponents have provided me with specific evidence addressing each of 

those rights and interests as follows: 

1. The possession, occupation, use and enjoyment of the whole of the country within 

the area of the application. 

The current activities listed at Attachment G of the application support the right as 

described. The affidavit of (name deleted) states that he has lived most of his life in 

Western Queensland, including going to school in Roma, Charleville and Mitchell as 

a child. He states that he is actively involved in the protection of Mandandanji 

culture and heritage (paras 6, 11). The affidavit of (name deleted) states that she 

has lived most of her life in and around Mandandanji country, including periods 

living in Surat and Roma as a child. She states that she still has a strong connection 

to Mandandanji country and returns as often as she can to get out into the bush. 

(paras 3, 9). The affidavit of (name deleted) states that the wherever possible he 

and members of his family continue to live and survive off the land using traditional 

knowledge and practices to hunt game, prepare bush medicines, make shelters and 

traditional weapons and artefacts (para 9). See also paras 2, 7, 8, 12. 

2. A right to protect and manage sites and places which the Mandandanji people 

determine are of cultural significance, including spiritual places, sacred sites, burial 

or body disposal places and ceremonial sites, including a right to perform 

customary ritual and ceremony at those places and a right when deemed necessary 

to exclude non-Mandandanji people from those places. 

The affidavit of (name deleted) states that she is actively involved in the protection 

of Mandandanji country. She states that she and her brother were the founding 

members of a community group whose purpose is to have Aboriginal cemeteries 

and burial grounds recognised as cemeteries and protected under the law. She was 

involved in the protest against the Tenneco pipeline which was successful in 

obtaining cultural monitoring of the pipeline corridor within Mandandanji country 

(paras 9, 10, 12). The affidavit of (name deleted) states that (name deleted) family 

members continue to implement the teachings of their forebears to visit and protect 

significant sites (para 7). The current activities listed at Attachment G of the 

application include cultural heritage work to maintain sites of significance and 

visitation and maintenance of cultural sites by elders and other members of the 


claim group. 

3. A right to hunt, fish, harvest and collect natural resources, including water and 

minerals above and below the surface, for customary, domestic and economic 

purposes 

The affidavit of (name deleted) states that he learned most of what he knows about 

Mandandanji culture from his mother, and some from his grandmother. He learned 

about hunting and preparing bush tucker from his mother and about bush medicine 

from his grandmother (para 9). The affidavit of (name deleted) states that she went 

bush with her grandmother and learned traditional hunting and gathering (para 5). 

Elsewhere, she states that the Mandandanji have always been known as the fish 

net people, because of the unusual fish nets traditionally used (para 13). The 

affidavit of (name deleted) refers to the use of natural flora from Mandandanji 

country for medicinal purposes (para 8) and hunting game and manufacturing 

traditional weapons and artefacts (para 9). The current activities listed at 

Attachment G of the application include traditional hunting and fishing and 

fossicking. 

I note that the applicants do not make any claim to ownership of minerals, 

petroleum or gas wholly owned by the Crown (stated at Schedule Q). 

4. A right to environmental management of the determination area, including: 

(I) to control the use of the environment; 

(ii) to negotiate, participate in, be consulted on and make decisions on matters of 

environmental use and changes to uses; 

(iii) to restrict certain environmental uses, including commercial and recreational 

uses and 

(iv) to visit, protect and manage Mandandanji cultural heritage sites, including 

habitation sites. 

In my view the material refered to at 2 above also supports this right. In particular 

the affidavit of (name deleted) outlines her current involvement in the protection of 

Mandandanji culture and heritage. She states that she and her brother were the 

founding members of a community group whose purpose is to have Aboriginal 

cemeteries and burial grounds recognised as cemeteries and protected under the 

law. She is also a Mandandanji representative on the Indigenous Working Group for 

the Queensland Department of Natural Resources. Her role is to report on 

environmental water resource issues in Mandandanji country. (paras 9, 10, 12, 13). 

The affidavit of (name deleted) states that he is involved in maintaining 

Mandandanji culture and is currently the President of the Mandandanji Traditional 

Owners Aboriginal Corporation (para 11). The affidavit of (name deleted) states that 

family members continue to implement the teachings of their forebears to visit and 

protect significant sites (para 7). The current activities listed at Attachment G of the 

application include cultural heritage work to maintain sites of significance and 

visitation and maintenance of cultural sites by elders and other members of the 

claim group. 

5. A right to conduct those activities and enterprises which provide for the preservation 

of environmental and cultural integrity and sustainability according to customary 

Mandandanji law. 

The evidence provided in the affidavits of (names deleted), detailed under (4) 

above, demonstrate the prima facie basis for this right. Refer also to para 12 of the 

affidavit of (name deleted), which states that the (name deleted) family have 

continued to maintain the Mandandanji culture in accordance with traditional 

practices and custom. 


6. A right to live on the determination area and to construct residences, shelters and 

other structures for use in association with the exercise of their native title rights. 

The affidavit of (name deleted) states that he has always maintained a connection 

to Mandandanji country and currently lives on a property called Laureston near 

Roma, in the claim area (para 8). The affidavit of (name deleted) states that he has 

lived much of his life in and around Mandandanji country (para 2) and that he and 

his families construct shelters when they visit their country (para 9). 

7. A right to have access to the determination area and to control access to the 

determination area by others. 

The affidavit (name deleted) states that she has lived most of her life in and around 

Mandandanji country. She states that she still has a strong connection to 

Mandandanji country and returns as often as she can to get out into the bush. 

(paras 3, 9). Her activities in relation to the protection of Mandandanji cultural 

heritage and monitoring of access to water resources in Mandandanji country, 

detailed under (4) above, also demonstrate the prima facie basis for this right. The 

affidavit of (name deleted) states that he has always maintained a connection to 

Mandandanji country and currently lives on a property called Laureston near Roma, 

in the claim area (para 8). The affidavit of (name deleted) states that the family 

continue to access Mandandanji country to visit and protect significant sites, to live 

off the land using traditional knowledge and practices and to hold annual family 

gatherings (paras 7, 9, 12). 

8. A right to live according to Mandandanji culture (including Mandandanji legal and 

political systems), to exercise self-determination and to have these rights respected 

by others. 

In my view the assertion of this right cannot be established on a prima facie basis. 

In my view the assertion of rights to self-determination extends beyond the scope of 

native title rights and interests as defined in s.223 of the Act and set out through the 

common law. Within the Anglo-Australian legal context Native Title rights are essentialy 

property rights which while touching upon the human right to self-determination are not 

inclusive of it. 

Note that the applicants will not be registered in relation to the asserted right to self 

determination 

9. A right to own and protect all intellectual property over cultural knowledge of the 

Mandandanji people, including names, words and stories and knowledge about 

animals, plants, areas and places within the determination area. 

The affidavit of (name deleted) states that she passes on customary knowledge and 

stories to her children (para 8), and learned about Mandandanji culture (for example 

bush skills, the Mandandanji language and the location of significant sites) from her 

grandmother and other elders. (paras 5 – 9). She states that she is actively involved 

in the protection of Mandandanji culture and heritage (para 9). The affidavit of 

(name deleted) states that he learned about Mandandanji culture from his mother 

and grandmother, for example hunting, preparing bush tucker and bush medicine 

(para 9). Elsewhere he states that he is involved in preserving Mandandanji culture 

and is President of the Mandandanji Traditional Owners Aboriginal Corporation 

(para 11). The current activities listed at Attachment G of the application include the 

naming of sites and places. The affidavit of (name deleted) refers to preserving 

knowledge of the location and significance of significant sites and of traditional 

medicine (paras 7 and 8) and passing on knowledge belonging only to men or 

women, being secret business, to following generations (para 10). 

10. A right to repatriate and deal with the remains of deceased Mandandanji people 


within the determination area. 

The affidavit of (name deleted) states that she learned about the burial grounds at 

Surat from her grandmother (para 7). Elsewhere, she states that she and her 

brother were the founding members of a community group whose purpose is to 

have Aboriginal cemeteries and burial grounds recognised as cemeteries and 

protected under the law (para 10). The affidavit of (name deleted) describes 

traditional Mandandanji burial customs and states that his family have tried as much 

as is practical to ensure that their people are buried in Mandandanji country (para 

11). 

11. A right to assert, inherit and confer native title rights and interests in the 

determination area in accordance with Mandandanji custom, tradition and culture. 

The affidavit of (name deleted) states that she passes on customary knowledge and 

stories to her children (para 8), and learned about Mandandanji culture (for example 

bush skills, the Mandandanji language and the location of significant sites) from her 

grandmother and other elders. (paras 5 – 9). The affidavit of (name deleted) states 

that he was taught about the traditional laws and customs of the Mandandanji 

people, the traditional boundaries of Mandandanji country, the location and 

significance of sites in Mandandanji country, and about the importance of living in 

harmony with the land, by the elders of the group and in particular his father and 

grandfather (paras 3, 5, 7, 9). 

The current activities listed at Attachment G of the application include education of 

younger members of the native title group in the ways of Mandandanji culture. 

12. A right to maintain, protect, control and prevent misuse of cultural knowledge of 

the native title claim group associated with the land and waters covered by the 

application. 


above, demonstrate the prima facie basis for this right. 

13. A right to educate future generations and to pass on to others knowledge about the 

land and waters covered by the application. 


above, demonstrate the prima facie basis for this right. 

I have found that each of the native title rights and interests 1 to 7 and 9 to 13 above, 

claimed by the applicants can be established on a prima facie basis. 



190B7 

Traditional physical connection: 

The Registrar must be satisfied that at least one member of the native title claim 

group: 

(a) currently has or previously had a traditional physical connection with any part 

of the land or waters covered by the application; or 

(b) previously had and would reasonably 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 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 holder of a lease. 


Under s.190B(7)(a) I must be satisfied that at least one member of the native title claim 

group currently has or previously had a traditional physical connection with any part of 

the land or waters covered by the application. 

There is considerable evidence contained in the affidavits and considered under 

s190B(5) and s190B(6) above which supports a current and previous traditional 

connection on the part of members of the native title claim group 

In particular the affidavit of (name deleted) provides evidence of traditional physical 

connection. In her affidavit she states that she has lived most of her life in and around 

Mandandanji country, including periods living in Surat and Roma as a child. She states 

that she still has a strong connection to Mandandanji country and returns as often as 

she can to get out into the bush. (paras 3, 9). 


190B8 

No failure to comply with s61A: 

The application and accompanying documents must not disclose, and the Registrar 

must not otherwise be aware, that, because of s61A (which forbids the making of 

applications where there have been previous native title determinations or exclusive 

or claims for exclusive possession over non-exclusive possession acts), the 

application should not have been made. 



For the reasons that follow I have formed the conclusion that there has been 

compliance with s61A and that the provisions of this section are met. 

s61A(1) – Native Title Determination 

A search of the Native Title Register undertaken on 9 February 2000 has revealed that 

there is no approved determination of native title in relation to the area claimed in this 

application. 

S61A(2) – Previous Exclusive Possession Acts 

The exclusion clauses at paragraph 1 of Attachment B2 effectively exclude any lands 

subject to a previous exclusive possession act as defined under s.23B of the Act save 

where the Act allows those lands to be part of a native title determination application. 

The exclusion clauses meet the requirement of this subsection. 

S61A(3) – Previous Non-Exclusive Possession Acts 

Paragraph 3 of Attachment B2 confirms that the application does not include a claim for 

exclusive possession over areas that are or were subject to a valid previous nonexclusive 

possession act attributable to the Commonwealth or to a State or Territory 

where a law of that State or Territory has made provision as mentioned in s.23I in 

relation to the act. 


. 

190B9 

(a) 

Native title rights and interests claimed do not include ownership of minerals, 

petroleum or gas wholly owned by the Crown: 

At Schedule Q of the application, the applicants state that the application does not 

make any claim to ownership of minerals, petroleum or gas wholly owned by the 

Crown. 



190B9 

(b) 

No claim to exclusive possession of waters in an offshore place 

The area claimed does not include any offshore area. It is therefore not necessary for 

me to consider this section further as it is not relevant. 


190B9 

(c) 

No other extinguishment (except that to be disregarded under subsection 

s.47(2), s.47A(2) or s.47B(2)). 

The application and accompanying documents do not disclose, nor am I otherwise 

aware, that the application contravenes the criteria set out in s.190B(9)(c). 


End of Document

Mandandanji People #2 - National Native Title Tribunal

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