Reason - People of Naghir #1 - National Native Title Tribunal

ReasonApplication Name: People of Naghir #1Application (NNTT) No:Application (Fed Crt) No:Region:QC96/77QLDQueenslandDate Application Made: 27/06/96Date Registration TestDecision made:Decision:03/09/99AcceptedBrief history of the decisionThe original application by the applicants was lodged with the Tribunal on 27 June 1996. A notice of motion to amend theapplication was filed with the Federal Court on 3 August 1999 and leave to amend was granted by the Federal Court on 12August 1999.Information considered in making the decisionIn determining this application I have considered and reviewed all of the information and documents from the following files,databases and other sources:¨The Working/Personnel Files and Registration Test File for QC96/77;¨ Other tenure information acquired by the Tribunal in relation to the area covered by this application, including a letterfrom the Department of Premier and Cabinet, Queensland Government dated 8 June 1999 and the historical tenure materialenclosed therewith;¨ Working files and related materials for native title applications that overlap the area of this application (if applicable)and for related application QC96/78 & 79.¨¨¨¨The National Native Title Tribunal Geospatial Database;The Register of Native Title Claims;The Native Title Register;Determination of Representative ATSI Bodies: their gazetted boundaries;Note: Information and materials provided in the context of mediation have not been considered in making this decision due to thewithout prejudice nature of those conferences and the public interest in maintaining the inherently confidential nature of suchconferences.S190B(2) Identification of area subject to native title Met190B(2)Description of the areas claimed:The Registrar must be satisfied that the information and map contained in the application as required by paragraphs62(2)(a) and (b) are sufficient for it to be said with reasonable certainty whether native title rights and interests areclaimed in relation to particular land or waters.Reasons for the Decision

External Boundaries and MapExternal BoundariesThe external boundaries of the claim area are described at A6 of the original application and at schedule B of the amended application.The claim area consists of a number of discrete parcels of land being the land area of Naghir Island (Naga) Mt Ernest Island, Peenacar Rock,Getullia Island, Suarji Island, Watson Cay, Travers Island and four other surrounding island/land masses in the seas of the Torres Strait. Seemy reasons under s62(2)(a)(i) for the full description of each island/land mass forming part of the claim area.The descriptions allocated to the island/land masses at A6 by referring to a lot, tenure type and plan number is the State’s unique identifyingreference for the relevant island/land mass forming part of the claim area. The description clearly identifies the area according to the State’sland identification and tenure record system, which enables members of the public to identify land according to the descriptions allocated bythe State to the land. I am satisfied that the descriptions allocated to the parcels making up the claim area sufficiently identifies the landaccording to the State’s public record system.I am further assisted by the map of the claim area attached to the original application (on which there is the parcel description next to eachclaimed island) and by the map of the claimed islands drawn by the State’s Native Title Unit provided as further information [refer to myreasons under s62(2)(a)(i)].I make this decision also bearing in mind that the areas so described are island or land masses surrounded by water in a remote area of thecountry, and the expense that would be occasioned surveying the same.Schedule B of the amended application also contains this statement:“By way of clarification, the boundaries of the application extend to the high water mark of all the claimed islands.”I am prepared to accept the statement at schedule B of the amended application as sufficiently describing the external boundary of theisland/land masses the subject of this claim.MapAs stated above in my reasons under s62(2)(a)(i), the original application contains two maps:· a map showing most of the claim area with the claimed island/land masses drawn with a fine black pen;· a locality map entitled “The Islands of Torres Strait”.A further map has also been provided to the Tribunal as additional information.The survey and other plans referred to in the description of the claim area in A6 of the application are not attached to the application. Themap attached to the application is not drawn to a scale, nor are there co-ordinate points on it. However, each of the claimed island/landmasses is depicted with reasonable clarity on this map, save for Lot 26 on Survey Plan TS233.Each of the relevant island/land masses are also identified on the map by the lot parcel and plan description allocated according to the State’spublic land identification system. Armed with the parcel description lot and plan references, it is possible to identify the external boundariesof the claim area on the earth’s surface with reasonable certainty.The applicant has also provided clarification as to the location of the boundaries of the claim area in a further map of the claim area enclosedwith a letter from his representative dated 28 July 1999. This map is drawn to a scale, was prepared by the State’s Native Title Unit andidentifies each island/land mass according to the parcel description referred to in A6 of the original application including Lot 26 on SurveyPlan TS233. The information on the state map corresponds to the information on the map of the surrounding island/land masses attached tothe original application.I make two specific points about the map attached to the application. Firstly, as already indicated, the parcel described as “Lot 26 on SurveyPlan TS233 (Travers Island)” is not depicted. Secondly, the parcels described as “Lot 7 on USL 36706” and “Lot 3 on USL 36706” are notclearly depicted on the application map, being very small land masses.The map attached to the application would in most instances be insufficient to satisfy me under this section (and the correspondings62(2)(b)) for the reasons stated above.However, the location of Travers Island and the other two land masses is clearly shown on the State map, together with the writtendescription, which corresponds with the description in A6 of the application. I have decided to accept the State map as additional

An exhaustive list of names of the persons in the native title claim group has not been provided. Consequently, the requirements ofs.190B3(a) of the Act are not met.It is therefore necessary for the application to comply with s.190B (3)(b), which states that the application must otherwise describe thepersons in the native title claim group sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.To meet this condition of the registration test the description of the group must be sufficiently clear so that it can be ascertained whether anyparticular person is a member of the native title claim group.At schedule A of the amended application, a description of the native title claim group is provided in these terms:“The people of Naghir being those persons who are descended from or adopted by James Mills and Sorogo. Sorogo was the son of Mori, thelast chief of Naghir.By letter dated 28 July 1999, the applicant’s legal representative elaborated upon what is meant by the process of adoption according to thenative title claim group’s tradition. The letter dated 28 May 1999 states:“Adoption means to take a person into a relationship, especially to take another’s child as one’s own. Adopted children are accorded thesame status and rights as birth children through customary law, including the right to inherit property. An adopted child will not, or at leastshould not, be told who his or her natural parents are until at least late adolescence. Children are frequently adopted from their biologicalparents to one of the biological mother’s siblings, and in so doing will be included in the cognatic descent group on wither account. Manyother possibilities exist however, and the only definitive rule about who may adopt one’s child is that it will never be a stranger of thebiological parents.”I have decided to accept the material in this letter as additional information clarifying the description in schedule A and as such to be includedon the Register of Native Title Claims.In this regard, I note that although s190B3(b) does not expressly stipulate that the description of the native title claim group needs to beencompassed entirely in the application, s61(4) may well have that effect by virtue of it providing that a native title determination applicationdescribe persons sufficiently clearly so that it can be ascertained whether any particular person is in a native title claim group.However, I have decided that strict adherence to the provisions of s61(4) in this circumstance would produce a manifestly unfair and unjustresult and the following factors are particularly relevant to my decision:1. the fact that the issue of adoption only arises in respect of children adopted by two named persons; and2. that there has been a grant by the State of a 30 year lease in favour of a corporation controlled by members of the native title claimgroup and the setting aside of two islands within the claim area as aboriginal reserves (refer search results at attachment A of the amendedapplication).I have consequently had regard to the obligations imposed on the Tribunal by s109 to “pursue the objective of carrying out its functions in afair, just, economical, informal and prompt way” (s109(1)) and the provisions of s109(3) which state that the Tribunal, in carrying out itsfunctions, is not bound by technicalities, legal forms or rules of evidence. In the circumstance of this application, I am relying on theseprovisions to enable the definition of adoption provided by letter to be read as part of the native title claim group description detailed in theapplication.Thus a person may be reckoned as a member of the Naghir native title claim group in two ways:· as a descendant of the two named ancestors;· as a person adopted by one of the two named ancestors.I am satisfied that the descendants of the named persons could be identified with minimal inquiry and as such, be ascertained as part of thenative title claim group.The aforementioned letter dated 28 July 1999 from the applicant’s legal representative provides further information as to how the principleof adoption stated in the application works. I am satisfied that this explanation is sufficiently clear for it to be possible to ascertain whetherany particular person has been adopted into the native title claim group by virtue of:· the elaboration on the meaning of adoption in the letter of 28 July 1999;· the statement of the one definitive rule in relation to when adoption is not permitted (ie to a person who is a stranger to the parents);and· the fact that it is only necessary to look at the adoption by the two named ancestors.I am therefore satisfied that this description constitutes an objective means of verifying the identity of members of the native title claim group

S190B(4) Identification of claimed native title Met190B(4)Identification of claimed native titleThe Registrar must be satisfied that the description contained in the application as required by paragraph 62(2)(d) issufficient to allow the native title rights and interests claimed to be readily identified.Reasons for the DecisionFor the application to pass this condition of the registration test I must be satisfied that the native title rights and interests claimed by thenative title claim group can be readily identified.The native title rights and interests claimed by the native title claim group are found in A9 of the original application.The native title rights and interests claimed may be broadly categorised as the right to:1. possess, occupy, use and enjoy the claim area, including the natural resources therein and “the abovementioned surrounding seas,islands and natural resources”;2. inherit, dispose of, or deal among themselves with their rights and interests in the claimed areas;3. to hunt, fish, forage and gather natural resources within the claimed areas;4. to trade in the natural resources;5. to conduct social, religious, cultural and economic life upon or within the claimed areas.I note that the first mentioned right refers to “the abovementioned surrounding seas, islands and natural resources”. I find that this provisioncan be ignored as the previous paragraphs of the claim do not mention any such seas or any islands or natural resources within thosesurrounding seas. It is clear from A6 and the maps attached to the application and provided as further information that the claim relates onlyto the land areas described therein and not to seas etc. (in this regard I refer to my reasons under s190B2). This interpretation also affects arequest made by the applicant’s representative in a letter of 28th July, 1999 to ignore reference to ‘the abovementioned surrounding seas’ forthe reasons stated above.To meet the requirements of s190B4 I need only be satisfied that at least one of the rights and interests sought is sufficiently described for itto be readily identified.I am satisfied that all of the rights and interests listed can be readily identified from the description provided at A9 of the original application.The application therefore meets the requirements of s190B4 and s62(2)(d).S190B(5) Factual basis for claimed native title Met

190B(5)Sufficient factual basis:The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interestsclaimed exist is sufficient to support the assertion. In particular, the factual basis must support the followingassertions:(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 claimgroup 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 lawsand customs.Reasons for the Decision

There are three criteria to consider in determining over all whether or not I am satisfied that there is a sufficient factual basis to support theapplicants’ assertion about the existence of the native title rights and interests listed at A9 of this application.At Schedule F of the amended application, the applicant states that the evidence produced to support the assertions in s190B5 is an affidavitat Attachment F of the amended application. This is an affidavit by the applicant, {name deleted} sworn 23 July 1999.I find the evidence of the applicant on these issues probative in light of his statement that he is a senior traditional elder of the claim group(refer para. 5 of the affidavit accompanying the amended application pursuant to s62), who is a traditional owner of land within the claim area(para. 6(b)).I have also identified the following further relevant and probative material with respect to the requirements s190B5:1) the relatively unique historical aspects of this claim as referred to in A5 and A11 of the original application (the truth of which issworn to by the applicant in the affidavit accompanying the original application), and in correspondence from the applicant’s representativedated 28 July 1999;2) the fact that Naghir Island is the subject of a special lease from the Crown in favour of the native title claim group and a number ofaboriginal reserves (one dating back to 1926, over Naghir Island) have been proclaimed over various parts of the claim area (refer to my reasonsabove in relation to s190B2, under the heading “Internal Boundaries);3) the fact that dating back to 1910 until 1926, one of the two named ancestors {name deleted}, had been granted special leases by theCrown over Naghir Island (refer again to my reasons above in relation to s190B2, under the heading “Internal Boundaries”).I will now deal with each of the three criteria to be satisfied under this section.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 ofmembers of the native title claim group.· {name deleted} (23/07/99) provides a factual basis for the above condition in his statement by describing:· how he is a senior traditional elder of the native title claim group, and the owner of land on the claim area (para. 5 of affidavitaccompanying the application pursuant to s62 and para.6);· how members of the native title claim group (described as “traditional land owners”) have maintained their connections andassociations with the claim area and continue to occupy, enjoy and utilise the resources of the claim area (para. 4);· how “our” forefathers lived on the claim area before “us” and were also traditional owners of the claim area (para. 3);· examples of how the native title claim group have an acknowledged system of traditional laws and customs, namely, land ownership(para. 5), passing of land to others (paras. 5 and 6(b)), use and enjoyment of land and natural resources. {name deleted} gives the specificexample of his use of bamboo from the land for the manufacture of spears (para. 6(a));· traditional laws, customs and practices that he and other members of the native title claim group have observed and carried out on theclaim area, such as hunting, foraging, gardening, visiting culturally significant sites, conducting burials and tomb stone openings, participating infestivals and traditional dancing and being responsible on a daily basis for the care of the land (paras. 6(c) and 6(e));· the trade in which he and other members of the claim group have engaged in items such {name deleted} selling spears from Naghirbamboo at the Thursday Island Cultural Festival (para. 6(d)).I refer also to the statement at A5 of the original application to that the native title claim group is descended from “people who occupied theclaimed areas from time immemorial and from when the Island was annexed to the State of Queensland in 1879, and have continuouslyoccupied the claimed areas to present time”. I find this statement probative as to the claim group’s current association with the claim area,and the association of their predecessors with the claim area.I also reiterate that I find it probative that:· the Queensland State Government has granted to the native title claim group a special lease over part of the claim area, pointing tooccupation of the claim area by the group; and· one of the claim group’s two named ancestors was also granted leases over part of the claim area from 1910 to 1926, and subsequentlyto that an aboriginal reserve was proclaimed over the area until grant of the special lease to the Naga Tribal Torres Strait Islanders Corporation.Finally, I have taken note of the following assertions in correspondence (28/7/99) from the applicant’s representative in relation to therequirements of s190B5:“While no member of the native title claim group presently resides permanently on the claim area, the native title claim group presently enjoy,occupy, and use the claim area and are intimately associated with it. Part of that enjoyment is reflected through the holding by theircorporation of a thirty (30) year residential and commercial lease in respect of Lot 20 (Naghir Island). The native title claim group continue to

S190B(6) Prima facie case Met190B(6)Prima facie case:The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in theapplication can be established.Reasons for the Decision

‘Native title rights and interests’ are defined at s223 of the Native Title Act. This definition specifically attaches native title rights andinterests to land and water, and in summary requires:A. the rights and interests to be linked to traditional laws and customs;B. those claiming the rights and interests to have a connection with the relevant land and waters; andC. those rights and interests to be recognised under the common law of Australia.The definition is closely aligned with all the issues I have already considered under s190B5. I will draw on the conclusions I made under thatsection in my consideration of s190B6, rather than reconsider these requirements against each individual right and interest sought.Under s190B6 I must consider that, prima facie, at least some of the rights and interests claimed can be established. The term prima facie wasconsidered in North Ganalanja Aboriginal Corporation v Qld 185 CLR 595 by their Honours Brennan CJ, Dawson, Toohey, Gaudron andGummow 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: "Atfirst sight; on the face of it; as it appears at first sight without investigation." [Citing the Oxford English Dictionary (2nd ed 1989)].I have adopted the ordinary meaning referred to by their Honours when considering this application.In deciding which native title rights and interests claimed can prima facie be established I have relied on the affidavit of {name deleted}(23/7/99), information contained in A5 and A9 of the original application and the statements in the letter from the applicant’s legalrepresentative dated 28 July 1999 under the heading “Section 190B5”. The content of this material is outlined in my reasons for decision ats.190B5.The rights and interests claimed by the native title claim group are set forth in A9 of the original application.I note also that it is stated in schedule E of the amended application that there is no change to the description of the native title rights andinterests except that “no native title rights or interests are claimed where such rights have previously been extinguished and suchextinguishment is not to be disregarded by virtue of sections 47(2), 47A(2) and 47B(2)”.I refer to examples of the evidence that prima facie support the claimed native title rights and interests – the context that this evidence wasprovided is detailed in my reasons for decision at 190B(5).· The right to possess, occupy, use and enjoy the claimed land and water areas including the natural resources therein to the exclusionof all others.The affidavit by {name deleted} illustrates how he and members of the claim group have exercised this right in his lifetime. It illustrates howhe and other members of the claim group have owned land within the claim area, according to traditional laws and customs. It also outlineshow members of the claim group have used and enjoyed the claim area including hunting, foraging, gardening, trading in natural resources.I note that as described in A9 of the application, this right refers to “the abovementioned surrounding seas, islands and natural resources”. Ifind that this provision can be ignored, as the previous paragraphs of the claim do not mention any such seas or any islands or naturalresources within the surrounding seas. It is clear from A6 and the maps attached to the application that the claim relates only to the landareas described therein and not to seas etc. (in this regard I refer to my reasons under s190B2). Indeed no reference is made elsewhere in theoriginal application (including in the definition of the area covered by the claim in A6 of the application) to surrounding seas, and I accept thatthe reference to same is an error or drafting mishap on the part of the author of the document.I therefore delete reference to “and the above mentioned surrounding seas, islands and natural resources” in this claimed right. Thisdeletion should give affect to the request made by the relevant legal representative in their letter of 24/5/99.· To inherit, dispose of, or deal among themselves with their rights and interests in the claimed areas.I find that the affidavit of {name deleted} dealing with the ownership and inheritance of land on the claim area establishes this right andinterest.· To hunt, fish, forage and gather natural resources within the claimed areas.I find that evidence in the affidavit of {name deleted} detailing that the native title claim group hunt over the land, forage the land, garden theland and otherwise use and enjoy the land and its natural resources establishes, on a prima facie basis, this right and interest. So far as fishingis concerned, although this activity is not specifically averred to in {name deleted} evidence, I find that the reference to hunting and using thenatural resources of the land, such as animal and plant life (para. 6(a)) sufficiently establishes this right. Even if it was not sufficient, I am ofthe view that the right to fish off the shores is a right or interest which relies upon or is parasitic to the native title right to the claim areaestablished by the native title claim group and that it is therefore established on a prima facie basis.

S190B(7) Physical connection Met190B(7)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 bythe application; or(b) Previously had and would reasonably have been expected currently to have a traditional physical connectionwith any part of the land or waters but for things done (other than the creation of an interest in relation to land orwaters) 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.Reasons for the Decision

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 traditionalphysical connection with any part of the land or waters covered by the application.The affidavit by {name deleted} establishes that:· he is a member of the native title claim group;· he is a senior traditional elder of the native title claim group, who owns land on the claim area that he will pass on to his childrenwhen he dies;· he participates in traditional aspects of cultural expression and conducts activities on the claim area. For example {name deleted} usesbamboo from the land for the manufacture of spears that he then trades, and visits and maintains the graves of his relatives on Naghir.I have also taken into account the information provided in correspondence (28/7/99) from the applicant’s representative (detailed more fullyabove 190B(5)) specifically:“While no member of the native title claim group presently resides permanently on the claim area, the native title claim group presently enjoy,occupy, and use the claim area and are intimately associated with it.”In considering the significance of this information I have drawn on the decision of His Honour Justice Lee in Ward v State of WesternAustralia 159 ALR 483. In that case, His Honour found that native title will continue where connection with the land is substantiallymaintained by a community which acknowledges and observes, as far as practicable, laws and customs based on the traditional practices of itspredecessors. (501.40-45) In deciding whether presence is sufficient to ground native title, one must look at the question from thestandpoint of the indigenous community i.e. in the light of demands of the land and the way of life of that indigenous community. (500.30)His Honour was of the view that the degree of presence amounting to occupancy will vary. The survival of such a society may depend uponoccupation that is sparse and wide-ranging. However, a truly random presence on land, unconnected with the economic, cultural or religiouslife of the community will not amount to occupation. Occupancy for the purpose of native title is not possession at common law but anacknowledged connection with the land arising out of traditional rights to be present on and use the land. Such occupancy [for the purposesof native title] need not be exclusive to one community and may be shared between several communities in some circumstances. (501.15-25)Based on the evidence of {name deleted} as extensively set out in my reasons under s190B5 and 190B6, I am satisfied that he is a member ofthe native title claim group and that his occupancy of the area is not a random presence on the land, unconnected with the economic, culturalor religious life of the community. Consequently, for the purpose of this section I consider {name deleted} has the requisite traditionalphysical connection.The requirements of this condition of the registration test are therefore met.S190B(8) No failure to comply with section 61A Met190B(8)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 determinationsor exclusive or non-exclusive possession acts), the application should not have been made.Reasons for the Decision

For the reasons that follow I have formed the conclusion that there has been compliance with s61A.s61A(1) – Native Title DeterminationA search of the Native Title Register has revealed that there is no approved determination of native title in relation to the area claimed in thisapplicationS61A(2) – Previous Exclusive Possession ActsThe applicant has not excluded from the claim area any specific tenure or other class or type of tenure referred to in s23B of the Act.However, at schedule E of the amended application, the applicant makes the statement that “no native title rights or interests are claimedwhere such rights have previously been extinguished and such extinguishment is not to be disregarded by virtue of sections 47(2), 47A(2) or47B(2)”. I have already made certain findings about this statement at 190B2 (above) and also rely on these findings in this section.Historical TenureThe Department of Premier and Cabinet, Queensland Government has supplied historical tenure information with respect to Naghir Island,but did not provide any formal submissions under s190A(3) about this tenure in so far as it was relevant to the registration testing of thisapplication.Neither the applicant nor the Tribunal has obtained a detailed historical tenure search in relation to the balance of the claim area. Indeed,because of the remote, sparsely populated and likely simple tenure history of the remainder of the claim area, the expense and time involvedin obtaining a detailed historical search of tenure of the other islands appears unwarranted at this point. Six of the ten claimed island/landmasses are unallocated state land.The historical tenure information identifies a number of likely previous exclusive possession acts (“PEPAs”) being:· expired special leases in favour of one of the group’s ancestors, {name deleted}, between 1910 and 1926;· an expired special lease in favour of the Church.There are certain circumstances when prior extinguishment of native title rights and interests by the creation of an interest such as a PEPAmay be disregarded (and thus the requirements of s61A met notwithstanding the prior existence of such an interest).This is provided for in s61A(4) of the Act, which states that “subsection (2) and (3) [of s61A] does not apply to an application if:(a) the only previous exclusion possession act or previous non-exclusive possession act concerned was one whose extinguishment ofnative title rights and interests would be required by section 47, 47A or 47B to be disregarded were the application to be made; and(b) the application states that section 47, 47A or 47B, as the case may be, applies to itSchedule E of the amended application provides that “no native title rights or interests are claimed where such rights have previously beenextinguished and such extinguishment is not to be disregarded by virtue of sections 47(2), 47A(2) or 47B(2).”I am of the view that failing to specifically exclude the areas of land covered by these likely (prior) PEPAs is not a contravention of s61A asthe applicant has specifically stated in the application that sections 47(2), 47A(2) or 47B(2) apply.Should it be found that these sections are not applicable, the statement at schedule E (detailed above), has the effect of excluding from theclaim area any such extinguishing interest, including a prior PEPA interests.Current TenureThe Department of Premier and Cabinet, Queensland Government has supplied current tenure information with respect to Naghir Island, butdid not provide any formal submissions under s190A(3) about this tenure in so far as it was relevant to the registration testing of thisapplication.The tenure information to hand reveals that Naghir Island (Lot 20/TS228) is subject to a special lease which commenced on 16th May, 1991.The State of Queensland entered into this lease with the Naga Tribal Torres Strait Islanders Corporation for “residential and commercialpurposes”. In a letter dated 28/7/99 from the applicants representative it is noted that ‘Naghir’ has, in the past, been incorrectly spelt as ‘Naga’.I have examined a copy of the Special Lease Vol 7721 Fol 80 which is marked Attachment A to the application and was also provided by theDepartment of Premier and Cabinet, Queensland Government. The lease was issued pursuant to 203(a) of the Land Act 1962-1890 over 30years for “residential and commercial purposes”.

S190B(9) No extinguishment etc. of claimed native title Met190B(9)(a)Ownership of minerals, petroleum or gas wholly owned by the Crown: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 right of the Common-wealth, a State or Territory wholly owns the minerals,petroleum or gas;Reasons for the DecisionAt Schedule Q of the amended application it is stated: “The native title claim group does not claim ownership of minerals, petroleum or gasto the extent to which the Commonwealth or the State owns such minerals, petroleum or gas and such ownership by the Commonwealth orState has wholly extinguished any native title rights in such petroleum, minerals or gas.”I am satisfied that this statement has the effect that the application complies with the requirements of S190B(9)(a).190B(9)(b)Exclusive possession of an offshore place:The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that:(b) to the extent that the native title rights and interests claimed relate to waters in an offshore place - those rightsand interests purport to exclude all other rights and interests in relation to the whole or part of the offshore place;Reasons for the DecisionThe area claimed does not include any offshore area (refer to my reasons under s190B2, from which it is apparent that the external boundariesof the claim area do not extend to any offshore areas). It is therefore not necessary for me to consider this section further.190B(9)(c)Other extinguishment:The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that:(c) in any case - the native title rights and interests claimed have otherwise been extinguished (except to the extentthat the extinguishment is required to be disregarded under subsection 47(2), 47A(2) or 47B(2)).Reasons for the Decision

The application and supporting material and the Tribunal’s file do not disclose nor am I otherwise aware that the native title rights andinterests claimed in the application have been otherwise extinguished.In this regard I rely on the statement in schedule E of the amended application to the effect that “no native title rights or interests are claimedwhere such rights have previously been extinguished and such extinguishment is not to be disregarded by virtue of sections 47(2), 47A(2) or47B(2)”.I am satisfied that the requirements of this section have been met.S190C(2) Information etc required by sections 61 & 62 MetInformation, etc, required by section 61 and section 62:190C(2)The Registrar must be satisfied that the application contains all details and other information, and is accompanied byany affidavit or other document, required by sections 61 and 62.Details required in section 6161(3) Name and address for service of applicant(s)Reasons relating to this sub-conditionRequirements are met. Page 1 of the amended application identifies the single applicant and the address for service isdetailed at page 14 of the amended application61(4) Names persons in native title claim group or otherwise describes the persons so that it can be ascertainedwhether any particular person is one of those personsReasons relating to this sub-conditionRequirements are met. The amended application describes the native title claim group at Schedule A, page 2 of theamended application. In my view the description of the claim group at schedule A, elaborated upon in a letter from theapplicant’s legal representative dated 28 July 1999 is sufficient for it to be ascertained whether any particular person isone of those persons. I have reached this view for the reasons contained in my decision at s.190B3.

61(5) Application is in the prescribed form Note that in relation to pre 30.09.98 applications, the application does not needto be in the prescribed form as required by the amended Act. Note also that pre 30.09.98 applications are deemed tohave been filed in the Federal Court., lodged in the Federal Court, contain prescribed information Note also that “prescribed information” is that which is required by s62 as set out in the text of this reasons document under “Detailsrequired in section 62(1)”., and accompanied by prescribed documents and feeReasons relating to this sub-conditionRequirements are met.The amended application is in the form prescribed by Regulation.5(1)(a) Native Title (Federal Court) Regulations 1998.As required under section 61(5)(b), the amended application was filed in the Federal Court. The original application istaken to have been made to the Federal Court in accordance with Table A, Application, Savings or TransitionalProvisions, item 6 case 3.The application meets the requirements of section 61(5)(c). I refer to my reasons in relation to s62.As required by section 61(5)(d) an affidavit and map as prescribed by s62(1)(a) and s62(2)(b) respectively accompanythe application. I refer to my reasons below in relation to s62(1)(a) and s62(2)(b) of the Act.I note that section 190C(2) only requires me to consider details, other information, and documents required by section61 and 62. I am not required to consider whether the application has been accompanied by the payment of a prescribedfee to the Federal Court.Details required in section 62(1)62(1)(a)Affidavits address matters required by s62(1)(a)(i) – s62(1)(a)(v)Reasons relating to this sub-conditionRequirements are met.{name deleted} has sworn an affidavit addressing the matters required by s62(1)(a)(i) – (v). The affidavit was sworn on23 July 1999. It is appended to the amended application. The affidavit meets the requirements of s62(1)(a)(i) tos62(1)(a)(iv), at points 1, 2, 3 and 4 respectively.Point 5 of the affidavit refers to the basis of the applicant’s authorisation, and consequently the requirements ofs62(1)(a)(v) are satisfied.For the reasons set out above, I have formed the view that the application complies with the requirements of thissubsection.62(1)(c)Details of any traditional physical connection (information not mandatory)

Comment on details providedThe native title claim group provides some detail of traditional physical connection in the original application at A9being a statement of some of the traditional laws and customs observed. There is also some detail of traditional physicalconnection in A5 of the amended application.Further detail is contained in an affidavit by {name deleted} dated 23 July 1999 at attachment “F” of the amendedapplication. This affidavit outlines his traditional connection with the land, and the traditional connection of the claimgroup and their predecessors. I have referred to this information in more detail in my reasons for decision in relation totest conditions 190B(5), 190B(6) and 190B(7).Details required in section 62(2) by section 62(1)(b)62(2)(a)(i)Information identifying the boundaries of the area coveredReasons relating to this sub-conditionApplication passes the conditionRequirements are met.The boundaries of the area covered by the application are identified by the following information:· A map attached to the original application showing the claim area. This map does not show co-ordinates for thearea, nor does it have a scale. However, next to each island/land mass depicted on this map is the relevant parcel descriptionaccording to the State’s public record system for identification of land in Queensland which assists me in identifying thelocation of the island/land mass on the earth’s surface notwithstanding the absence of co-ordinate points on the map. Theexternal boundary for each island/land mass is finely drawn on this map;· A locality map entitled “The Islands of the Torres Strait”. As this map does not identify by name or descriptionany of the claimed islands, it is of no assistance;A third map provided as additional information by the applicant’s representative body. Though not included with theapplication, it also assists in the location of all of the claimed islands/land masses, and is accepted as additional clarification asit does not amend the application in any way. The external boundary of each island/land mass is finely drawn on this thirdmap. A parcel description that corresponds to the description in A6 of the original application is allocated to each landisland/land mass. This map is drawn to a scale and has been prepared by the State’s Native Title Unit from land tenureinformation obtained from the Digital Cadastre Data Base.

· Schedule B to the application amended on 12 August 1999 reads: “By way of clarification, the boundaries of theapplication extend to the High Water Mark of all the claimed islands”.· A technical description for each parcel, which is found at A6 of the original application, as follows:“the land areas of:(a) Naghir Island (Naga) (Mt Ernest Island described as Lot 20 on Survey Plan TS 228;(b) Lot 18 on USL 36708 (Peenacar Rock);(c) Lot 25 on Survey Plan TS 229 (Getullia Island) also known as Aboriginal Reserve R67;(d) Lot 6 on USL 36706;(e) Lot 21 on Survey Plan TS229 (Suarji Island);(f) Lot 7 on USL 36706;(g) Lot 3 on USL 36706;(h) Lot 21 on USL 36712;(i) Lot 20 on USL 36712 (Watson Cay);(j) Lot 26 on Survey Plan TS233 (Travers Island)being in the Parish Adolphus, County of Torres in the State of Queensland, such survey plan being held by the QueenslandDepartment of Natural Resources (Lands Department) at Brisbane in the State of Queensland.”The application meets the requirements of this condition. See also my reasons for decision provided under s190B(2).62(2)(a)(ii)Information identifying any areas within those boundaries which are not coveredReasons relating to this sub-conditionRequirements are met.At schedule E of the amended application, the applicant states that no native title rights or interests are claimed where suchrights or interests have previously been extinguished and such extinguishment is not to be disregarded by virtue of sections47(2), 47A(2) and 47B(2).Although there is no further information identifying any specific tenure or types of tenure excluded from the claim area, itis my view that the circumstances of this case do not require such a class exclusion. See further my reasons for decision inrelation to the test conditions contained in 190B(2).62(2)(b)A map showing the external boundaries of the area covered by the applicationReasons relating to this sub-conditionRequirements are met. A map showing the external boundaries is attached to the original application. See reasons providedunder s62(2)(a)(i).62(2)(c)Details/results of searches carried out to determine the existence of any non-native title rights and interests

Reasons relating to this sub-conditionRequirements are met.The requirements of s62(2)(c) can be read widely to include all searches conducted by any person or body. However, Iam of the view that I need only be informed of searches conducted by the applicant, in order to be satisfied that theapplication complies with this condition. It would be unreasonably onerous to expect applicants to have knowledge of,and obtain details about all searches carried out by every other person or body.At schedule D of the amended application the applicant states “see attached marked “Attachment A””, in response tothe request for details and results of searches. Attachment A contains copies of three searches obtained from DNR inrespect of tenures over part of the claim area and a copy of a special lease over part of the claim area.There is no information on the files held by the Tribunal to indicate that the applicant has carried out any other searchesover the claim area.It follows that I am satisfied that the requirements of this section are met.62(2)(d)Description of native title rights and interests claimedReasons relating to this sub-conditionRequirements are met.An adequate description of native title rights and interests claimed is contained in the original application at A9 aselaborated upon in schedule E of the amended application. I have outlined these rights and interests claimed in myreasons for decision in relation to s.190B(4).62(2)(e)(i)Factual basis – claim group has, and their predecessors had, and association with the areaReasons relating to this sub-conditionRequirements are met.The application outlines the factual basis for the assertion that the native title claim group has and their predecessorshad, an association with the area at A5, A9 and A11 of the original application and in the affidavit of {name deleted} atAttachment “F” of the amended application. I have outlined the factual basis as described by the applicants in myreasons for decision in relation to condition 190B5.I am satisfied that the application sets out a general description of the factual basis on which the asserted native titlerights and interests claimed exist. This matter is tested further in relation to s.190B(5).The application complies with this condition.

62(2)(e)(ii)Factual basis – traditional laws and customs exist that give rise to the claimed native titleReasons relating to this sub-conditionRequirements are met.The application outlines the factual basis for the assertion that traditional laws and customs exist that give rise to theclaimed native title at A5, A9 and A11 of the original application and in the affidavit of {name deleted} at Attachment “F” of the amended application. I have outlined the factual basis as described by the applicants in my reasons fordecision in relation to condition 190B(5).I am satisfied that the application sets out a general description of the factual basis on which the asserted native titlerights and interests claimed exist. This matter is tested further in relation to s.190B(5).The application complies with this condition.62(2)(e)(iii)Factual basis – claim group has continued to hold native title in accordance with traditional laws and customsReasons relating to this sub-conditionRequirements are met.The application outlines the factual basis for the assertion that the native title claim group has continued to hold nativetitle in accordance with traditional laws and customs, at A5, A9 and A11 of the original application and in the affidavitof {name deleted} at attachment “F” of the amended application. I have outlined the factual basis as described by theapplicants in my reasons for decision in relation to condition 190B(5).I am satisfied that the application sets out a general description of the factual basis on which the asserted native titlerights and interests claimed exist. This matter is tested further in relation to s.190B(5).The application complies with this condition.62(2)(f)If native title claim group currently carry on any activities in relation to the area claimed, details of thoseactivitiesReasons relating to this sub-conditionThe application provides general details of activities that the native title claim group carry out in relation to the areaclaimed at A5, A9 and A11 of the original application, and in the affidavit of {name deleted} at attachment F of theamended application.I consider that the activities that the group carries out in the claim area are described in general terms.

62(2)(g)Details of any other applications to the High Court, Federal Court or a recognised State/Territory body theapplicant is aware of (and where the application seeks a determination of native title or compensation)Reasons relating to this sub-conditionRequirements are met. Schedule H of the amended application contains details of the one overlapping claim (as to whichrefer to my reasons under s190C3).62(2)(h)Details of any S29 Notices (or notices given under a corresponding State/Territory law) in relation to the area,and the applicant is aware ofReasons relating to this sub-conditionRequirements are met.It is stated at Schedule I of the amended application that there is no change, which I interpret to mean that the applicantis aware of no such notices.The application complies with this condition.Reasons for the DecisionThe application meets all of the requirements of s 190C(2), for the reasons detailed above.S190C(3) No previous overlapping claim groups MetCommon claimants in overlapping claims:190C(3)The Registrar must be satisfied that no person included in the native title claim group for the application (the currentapplication) was a member of the native title claim group for any previous application if:(a)(b)the previous application covered the whole or part of the area covered by the current application; andan entry relating to the claim in the previous application was on the Registerof 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 for the Decision

Requirements are met. An initial search of the Geospatial Database and Register of Native Title Claims on 2nd September 1999 reveals thatthere is an overlapping claim by the Mualgal People (QC96/20) over a small portion of the claim area (1.975sq.km).However, a review of the files and records for the Mualgal claim in native title application QC96/20 and the Register has revealed that:· although a consent determination of native title in favour of the Mualgal people in QC96/20 was made on 12 February 1999, inrespect of part of the area claimed in that application, the consent determination relates only to “the land and inland waters of Moa Island onthe landward side of the high water mark”.· the area over which the consent determination is made is not claimed by the native title claim group in this application, QC96/77;The balance of the claim by the Mualgal People in QC96/20 overlaps to some extent with the claim by the people of Naghir in QC96/77.However the area of overlap has not been entered on the Register as a result of a consideration of application QC96/20 under s190A.Consequently, there are no previous applications entered on the Register as a result of a consideration of such previous applications unders190A where:· the previous application covered the whole or part of the area covered by this application; and· a person included in the native title claim group for this application was a member of the native title claim group for a previousapplicationwhen this application was made.S190C(3)(b) requires identification of those claims that were on the Register of Native Title Claims when the current application was made.I therefore do not need to consider whether there are common members of the two native title claim groups, namely, the Mualgal and thepeople of Naghir. As a consequence, 190C(3) has no operation with respect to the application under consideration.S190C(4) Identity of claimed native title holders Met190C(4)(a)or190C(4)(b)Certification and authorisation: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 StraitIslander 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 dealwith 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 thecondition 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 for the Decision

Requirements are met.The applicant relies on the first limb of s190C4, namely that there has been compliance with s190C(4)(a) – certification by a representativeAboriginal/Torres Strait Islander body. An inspection of the NTRB gazetted boundaries establishes that the claim area is wholly within TheTorres Strait Regional Authority gazetted area.Section 190C(4)(a) requires certification by each representative Aboriginal/Torres Strait Islander body that could certify the application. Asindicated above there is only one such body, namely The Torres Strait Regional Authority (“TSRA”). The TSRA has certified theapplication. The relevant certificate is at attachment R of the amended application. It is dated 27 July 1999. It is signed by affixing theAuthority’s common seal to the certificate by and in the presence of its duly authorised officer, who has signed across the face of thecommon seal.Section 202(7) of the Act sets out the statements to be included in certification of an application for determination of native title. Thecertificate meets the requirements of s202(7)(a) as it includes a statement to the effect that the TSRA is of the opinion that the requirementsof s202(5)(a) and (b) have been met. The certificate states that:1. “{name deleted} has authority to make the application and deal with matters arising in relation to it, on behalf of all the other personsin the native title claim group; and2. All reasonable steps have been made to ensure that the application properly describes or otherwise identifies all the other persons inthe native title claim group.”The requirements of s207(b) are also met, as the certificate briefly sets out the TSRA’s reasons for being satisfied that the requirements ofparagraph 202(5)(a) and (b) have been met. The basis for the TSRA’s satisfaction is “the clear instructions of the native title claim groupwhich have consistently supported those opinions and most recently having been supported at a meeting on Thursday Island on 8 June 1999”.With respect to the requirements of s202(7)(c), I note that in the case where s202(6) applies the representative body must briefly set outwhat the representative body has done to meet the requirements of that subsection. Section 202(6) provides:“if the land or waters covered by the application are wholly or partly covered by one or more applications (including proposed applications)of which the representative body is aware, the representative body must make all reasonable efforts:(a) to achieve agreement, relating to native title over the land or waters, between the persons in respect of whom the applications are, orwould be made; and(b) to minimise the number of applications covering the land or waters.However, a failure by the representative body to comply with this subsection does not invalidate any certification of the application by therepresentative body.”Section 202(6) does apply to this application because of the overlapping application by the Mualgal People. The certificate by therepresentative body dated 27 July 1999 does set out briefly what the representative body has done to meet the requirements of s202(6).It follows that I am satisfied that application has been certified by the TSRA in accordance with paragraph 202(4)(d) as required bysubsection 190C(4) of the Act.