Mandandanji People #2 - National Native Title Tribunal

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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. Reasons for the Decision 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 C:\Documents and 10 Settings\andrewn\Desktop\test docs\Mandandanji People #2.doc
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. C:\Documents and 11 Settings\andrewn\Desktop\test docs\Mandandanji People #2.doc
Page 1 and 2: National Native Title Tribunal REGI
Page 3 and 4: Decision of Delegate For the reason
Page 5 and 6: 62(2)(e)(ii); traditional laws and
Page 7 and 8: 190C3 (b) (c) Common claimants in o
Page 9: epresentatives for the Mandandanji
Page 13 and 14: 190B4 Identification of claimed nat
Page 15 and 16: 190B5 Sufficient factual basis: The
Page 17 and 18: traditional country (para 11). I am
Page 19 and 20: claim group. 3. A right to hunt, fi
Page 21 and 22: within the determination area. The
Page 23 and 24: Reasons for Decision For the reason
Page 25: C:\Documents and 25 Settings\andrew

Mandandanji People #2 - National Native Title Tribunal

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