Barunggam People - National Native Title Tribunal

National Native Title TribunalNational Native Title TribunalREGISTRATION TESTDECISIONQC99/5Application NameName(s) of Applicant(s)Barunggam PeopleDeidre Daylight, Rosemary Bell, KathrynFisher, Lynette Johanssen, Vanessa Fisher,Averil Dillon, Steven Warner.RegionDate Application MadeCentralQueensland18 December1998NNTT NoQC99/5Fed Court No Q6005/99DecisionThe application IS ACCEPTED for registration pursuant to s190A of the NativeTitle Act 1993_______________________________REGISTRARDate of Decision: 26/02/99Date of Statement of Reasons: 10/03/99Reasons for Recommendation (Page1 of 28)

National Native Title TribunalThe information and documents in the following files, databases and other sourceshas been considered:QC99/5 Personnel File(Folios prefixed “A”)QC99/5 Registration Test File(Folios prefixed “B”)Form 1 Application and Attachments (Fol:1)• Form 1 Amended Application and Attachments(Fol:35)• Letter (applicant A – name deleted) to Tribunaldated 23/2/99 (Fol:14A)The information considered to be relevant to the application of the Registration Testis identified under each condition or sub-condition in these Reasons.Reasons for Recommendation (Page2 of 28)

National Native Title TribunalA. Merits Conditions190B2Description of the areas claimed:The Registrar must be satisfied that the information and mapcontained in the application as required by paragraphs 62(2)(a) and(b) are sufficient for it to be said with reasonable certainty whethernative title rights and interests are claimed in relation to particularland or waters.The following relevant documents have been extracted from the File Indexes ofmaterial that has been reviewed for this application.Fol Date Description Cat Probity, WeightA1 27/1/99 Form 1 Application –Attachment B and mapscontained at Attachment CB3526/2/99 Form 1 AmendedApplication – Appendix 1,Items 3 & 4 and AttachmentCMMHighHighFindings – external boundariesThe map of the claim area did not originally accord with the written description of theclaim area provided at Attachment B. For example, the latitude and longitude of thepoint on the map in the vicinity of the township of Meandarra is not included in thewritten description. The latitude and longitude of the final point in the written descriptiondoes not coincide with the starting point of the description, the township of Yuleba.Rather it is just to the east and south of Yuleba.Attachment C of the amended application includes a revised written description of theclaim area prepared with assistance from the Tribunal. Latitudes and longitudes are indecimal degrees and referenced to the Australian Geodetic Datum (1984). A revisedmap prepared with assistance from the Tribunal is at Attachment C. This is based onthe map provided in the original application and does not increase the size of the areaclaimed. The written description is consistent with the map. The earlier problems havenow been resolved by the amendment to the application.I am satisfied that both the written description of the external boundaries of the claimgiven by the applicants at Appendix 1, Item 3 of the amended application and the mapprovided by the applicants at Attachment C of the application enable the boundaries ofthe area the subject of the application to be clearly identified as required pursuant tos.62(2)(a)(i).The application passes this condition.Reasons for Recommendation (Page3 of 28)

National Native Title TribunalFindings – internal boundariesDetails of any areas within the boundaries of the claim area which are not covered bythe application were originally not provided at Schedule B of the application, nor atAttachment B. However, Attachment D of the original application states that ‘the rightsand interests expressed and claimed in this application do not apply to land inconsistentwith the Native Title Act 1994 and in particular freehold title areas and other exclusivepossession type acts’.The Tribunal sought clarification from the applicants of the description.At Appendix 1, item 3 of the amended application, the applicants specifically excludeany areas over which native title has been lawfully extinguished from the application, inparticular:• those areas which are subject to previous exclusive possession acts done by theCommonwealth or the State as set out in Division 2B of the Native Title Act (asamended) ;• where areas are subject to previous non-exclusive possession acts done by theCommonwealth or the State of Queensland as set out in Division 2B of the Act ,exclusive possession of those areas is not claimed; and• those areas where extinguishment of native title is recognised to have occurredunder the general common law of Australia.The internal boundaries of the areas claimed are therefore not marked on the maps ordescribed by reference to particular parcels or lots of land. However information onhistorical tenure can be obtained, albeit not readily in some instances, for each of theparcels of land listed in Schedule C, and is available on the public record. In someinstances the extraction of this information from the archives or land tenure records ofthe Commonwealth, States or Territories can take a long time. I am of the view that itwould be onerous, and in some instances impossible, for applicants to obtain lotspecific information as to internal boundaries (particularly within the time allowed underthe Act for the bringing of applications in response to s 29 notices). It is appropriate thatinternal boundaries described by sufficiently precise class exclusions of tenure beregarded as sufficient for it to be said with reasonable certainty whether native titlerights and interests are being claimed in relation to particular land and waters.It is clearly the applicants’ intention to identify the areas within the external boundariesof the claim area by means of a general or class exclusion, and I am satisfied that theclass exclusions as expressed by the applicants enable the internal boundaries of theareas the subject of the application to be identified as required pursuant to s.62(2)(a)(ii).ConclusionThe information and maps provided by the applicants are sufficient for it to be said withreasonable certainty that the native title rights and interests are claimed in relation toparticular land and waters.The application meets the requirements of s.62(2)(a) in that it the map and informationprovided enable the boundaries of the area covered by the application and the areaswithin those boundaries that are not covered by the application to be identified.Reasons for Recommendation (Page4 of 28)

National Native Title Tribunal190B3Identification of the native title claim group:The Registrar must be satisfied that:(a)(b)the persons in the native title claim group are named in theapplication; orthe persons in that group are described sufficiently clearlyso that it can be ascertained whether any particular personis in that groupA1 27/1/99 Form 1 Application –Attachment AMHighAn exhaustive list of the persons in the native title claim group has not beenprovided. Accordingly, the requirements of s.190B(3)(a) have not been met.In the alternative, s.190B(3)(b) requires the Registrar to be satisfied that the personsin the native title claim group are described sufficiently clearly so that it can beascertained whether any particular person is in that group.The description given for the claim group at Attachment A (cover page) is byreference to the descendants of two specified individuals, being John Warner andMatilda Daylight.Supplementary genealogical material is also provided in respect of the Daylightfamily and the Warner family.I am satisfied that, by specifying the claim group as comprising the descendants oftwo specified individuals, the applicants have provided an objective means ofverifying the identity of members of the native title claim group such that it can beclearly ascertained whether any particular person is in the group.The application passes this condition.Reasons for Recommendation (Page5 of 28)

National Native Title Tribunal190B4Identification of claimed native title rights and interests:The Registrar must be satisfied that the description contained in the application asrequired by paragraph 62(2)(d) is sufficient to allow the native title rights andinterests claimed to be readily identified.The following relevant documents have been extracted from the File Indexes ofmaterial that has been reviewed for this application.Fol Date Description Cat Probity, WeightA1 27/1/99 Form 1 Application –Attachment EMHighI am satisfied that the description contained in Attachment E of the application asrequired by s.62(2)(d) is sufficient to allow the native title rights and interests claimed tobe readily identified.The native title rights and interests are separately particularised in Attachment E.The application meets the requirements of s.190B(4).Reasons for Recommendation (Page6 of 28)

National Native Title Tribunal190B5Sufficient factual basis:The Registrar must be satisfied that the factual basis on which it is asserted that thenative title rights and interests claimed exist is sufficient to support the assertion. Inparticular, the factual basis must support the following assertions:(a)(b)(c)that the native title claim group have, and the predecessors of those personshad, an association with the area;that there exist traditional laws acknowledged by, and traditional customsobserved by, the native title claim group that give rise to the claim to nativetitle rights and interests;that the native title claim group has continued to hold the native title inaccordance with those traditional laws and customs.The following relevant documents have been extracted from the File Index of materialthat has been reviewed for this application.Fol Date Description Cat Probity, WeightA1 27/1/99 Form 1 Application –Attachment E, F, G and MA1 27/1/99 Applicants’ affidavitspursuant to s.62(1)(a)A1 27/1/99 Affidavit of (applicant B –name deleted) (appendix toAttachment M)MMMHighHighHighThere is a view that the factual basis upon which it is asserted the native title claimgroup had and have an association with an area must be proved to the satisfaction ofthe Registrar, or delegate, in respect of each particular parcel or area of the land andwaters claimed. The contention is that it is insufficient for the native title claim group todemonstrate that it previously had and still has connection to land or waters in abroader area of traditional country. (It is of course necessary for the area claimed in theapplication to be within the area asserted to be the broader traditional country.)This contention has particular significance in circumstances where a claimantapplication is lodged in response to a s 29 Notice that proposes a future use on a verydefined, and sometimes small, area of land. The claimant application may be madeonly in relation to the land that is subject to the s 29 Notice, rather than to the wholearea of what is asserted to be the broader traditional country of the native title claimgroup.Must the native title claim group be able to prove connection by to the particular areaclaimed in the application in order to satisfy this part of the registration test? Or is itsufficient for there to be proven connection to land or waters within the area asserted tobe the broader traditional country of the native title claim group (providing that the areaclaimed in the application falls within the broader traditional country)?The following views of Mr Justice Lee in Ward v WA 159 ALR 483 are pertinent to thisissue:1. At the time sovereignty was asserted by the Crown the radical title in the land of acolony thereby obtained by the Crown was burdened by any native title that existedprior to sovereignty (499).Reasons for Recommendation (Page7 of 28)

National Native Title Tribunal2. Native title may be extinguished by the Crown but continues until the Crown takessuch action by legislature or executive as reveals a clear and plain intention toextinguish it (499).3. Ancillary to a power to extinguish native title is a power to regulate the exercise ofrights that flow from native title and regulation may involve curtailment or suspension ofthose rights, but not extinguishment (500, 508).3. At common law native title will exist at sovereignty if an indigenous community hadan entitlement to use or occupy at that time. That entitlement arises from localrecognition that the presence of the community on the land reflected a particularrelationship, or connection, between that community and the land. Use or occupation ofthe land sufficient to ground native title is adjudged looking at whether the degree ofpresence on the land is consistent with the needs of a community pursuing traditionalpractices, habits, customs and usages that form the way of life of the community (500).4. The survival of a society, and particularly one which was nomadic, may depend onoccupation that is sparse and wide-ranging, but the ever changing locale of a nomadicgroup is not inconsistent with occupation sufficient to ground native title (501).5. Where native title has not been extinguished, either by the Crown or by theextinguishment of the group that possessed it, it will continue where connection with theland is substantially maintained by a community which acknowledges and observes, sofar as practicable laws and customs based on the traditional practices of itspredecessors (501).6. The activities or practices may be a modern form of exercise of those laws andcustoms, and the laws and customs may have changed since sovereignty provided thatthe general nature of the connection between the indigenous people and the landremains (502).7. Native title at common law is a communal right to land arising from the significantconnection of an indigenous society with land under its customs and culture. It is not amere ‘bundle of rights’ (508).8.It is under the native title right to land that other native title rights are enjoyed andthose other rights are parasitic upon or rely upon the native title (508, 510).9. Skill and knowledge regarding medicines or food, and the practices of hunting andfishing can be strong evidence of a physical connection, and the maintenance ofconnection generally to the land (538).10. Where native title is extinguished, rights that are parasitic or dependent upon it alsofall with that extinguishment (510).11. If native title to land is not extinguished, there is no extinguishment of rights that areparasitic or dependent upon it, but the extent to which those rights have beenregulated, curtailed, subordinated or suspended may be required to be considered(510).From the above it appears to me that native title could continue to be held by a nativetitle group to all the traditional country, subject to valid extinguishing legislative orexecutive acts, where sufficient connection has been maintained to that traditional area.This may not be dependent on a native title group having to show physical connectionto every parcel or tenement or allotment within that broader traditional area. It thereforeseems to me that given the beneficial nature of the Act, its objects and its preamble,that I should take the view that so long as there is sufficient factual material to showthat the native title claim group have, and the predecessors of those persons had,connection or association to some part of the traditional land or waters of the claimantgroup, then that will be sufficient.I will apply that view to the relevant parts of the registration test accordingly.Reasons for Recommendation (Page8 of 28)

National Native Title TribunalS.190B(5)(a)At the last paragraph of item 3 of Appendix 1 to the amended application, the applicantsassert that the native title claim group has, and the predecessors of those persons had,an association with the area.I am satisfied that the affidavit of (applicant B- name deleted) sworn 27 January 1999(“the affidavit of applicant B”), together with the applicants’ affidavits pursuant to s.62(1)(a), sufficiently evidence the factual basis upon which it is asserted that that part ofthe native title claim group who are descended from the apical ancestor, John Warner,have, and the predecessors of those persons had, an association with the area.The affidavit of applicant B evidences the fact that the Warner family have, and theirpredecessors have had, an association with the area as the affidavit:• refers to (applicant B – name deleted)’s family (back to her great grandfather, JohnWarner) having been born and/or lived in the claim area; and• states that the deponent herself was born, and has lived most of her life, inChinchilla (a town within the claim area).I am also satisfied that the detailed genealogical material provided in respect of theDaylight family at attachment A of the application, together with the facsimile fromPowerlink to the applicant, (applicant A – name deleted) (appendix 1.10 to AttachmentG of the application) (“the Powerlink facsimile”), sufficiently evidence the factual basisupon which it is asserted that that part of the native title claim group who aredescended from the apical ancestor, Matilda Daylight, have, and the predecessors ofthose persons had, an association with the area.I am satisfied that this is the case as:• the genealogical material states country of the apical ancestor, Matilda Daylight, tobe Miles, Dulacca Chinchilla, Surat and Warra (each place being within the areacovered by the application); and• the Powerlink facsimile evidences (applicant A – name deleted)’s association withthe area on the basis of her involvement with cultural heritage matters in respect ofthe areas.190B(5)(b)On the basis of the applicants’ affidavits, I am satisfied that the applicants haveasserted that there exist traditional laws acknowledged by, and traditional customsobserved by, the native title claim group that give rise to the claim to native title rightsand interests.In arriving at this conclusion I have had regard to the following:• at paragraph 3 of Attachment E to the application the applicant state that the nativetitle rights and interests in the application are subject to and in accordance withtraditional Barunggam law and customs;• at paragraph 4 of Attachment M to the application, the applicants assert that each ofthe native title rights and interests claimed are continuing under Barunggam lawsand customs; and• at paragraph 1 of Attachment G to the application, the applicants state that theclaimants continue to live, hunt, fish, visit, stay, meet and gather native flora andfauna and medicinal resources in the claim area.Reasons for Recommendation (Page9 of 28)

National Native Title Tribunals.190B(5)(c)On the basis of my reasons outlined above in relation to ss.190B(5)(a) & (b), I amsatisfied that there is, on the material before me, sufficient evidence as to a sufficientfactual basis to support the assertion that the native title claim group have continued tohold the native title in accordance with their traditional laws and customs.Reasons for Recommendation (Page10 of 28)

National Native Title Tribunal190B6Prima facie case:The Registrar must consider that, prima facie, at least some of the native title rightsand interests claimed in the application can be established.The following relevant documents have been extracted from the File Index of materialthat has been reviewed for this application.Fol Date Description Cat Probity, WeightA1 27/1/99 Form 1 Application –Schedule E and AttachmentFA1 27/1/99 Applicants’ affidavitspursuant to s.62(1)(a)MMHighHighReasons for Recommendation (Page11 of 28)

National Native Title TribunalThere being sufficient material and information to satisfy me on a prima facie basis thatthere is a sufficient factual basis to ground a claim for native title, it follows that there issufficient information and material to ground native title rights and interests which relyupon or are parasitic upon the native title right to land or waters (Ward v WA 159 ALR483 at 509-510). The activities or practices may be a modern form of the exercise ofnative title rights and interests that rely upon the native title. It is immaterial that thelaws and customs that ground the native title have undergone change sincesovereignty, provided that the general nature of the connection between the indigenouspeople and the land remains.There was no change made to Attachment E by the amended application.I am of the opinion that the native title rights and interests claimed at Attachment E ofthe application, that are set out below, can be prima facie established on the materialbefore me.The applicants have stated at Attachment E of the application that the native title rightsand interests claimed are:- subject to and in accordance with traditional Barunggam law and customs- a continuing practice and are still being enjoyed and exercised by the native titleclaim group.- true and correct so far as the Burunggam native title claimants are concerned- subject to the laws of the Commonwealth or the State of Queensland including theNTA as amended.Each applicant has sworn as to his or her belief that the native title rights and interestsclaimed by the native title group have not been extinguished in relation to any of theland or waters claimed, and also that all of the statements made in the application aretrue.There is no information before me that would throw any doubt on the contents of thoseaffidavits, and I therefore accept them as sworn evidence as to the truth of theircontents and the contents of the application.Rights and interests established:1. right to be identified as traditional owners2. right to speak for the country as traditional owners3. right to occupy4. right to protect and manage sites, places and areas of cultural, religious andeducational value for the well being of the group5. right to hunt and fish6. right to gather meet and stay7. right to host and perform customary and cultural practices8. right to grow harvest and gather natural resources9. right to be consulted, negotiate and participate about matters affecting native title orcultural and heritage matters, including matters relating to environmental protectionof the land and waters, and management of waters.There is one claimed native title right and interest that I haven’t recognised, being:a right to employment in fields relevant to status as traditional owners, in particularcultural and heritage studies, research and monitoring.The wording of the statement at para 12 is not clear, but appears to refer to theemployment of members of the claim group in cultural and heritage studies, researchand monitoring. It is my view that this is not a right that could be said to run with theland.A member, or members, of the group may have the required knowledge and skill toparticipate in heritage surveys and the like because of the special knowledge held as asenior traditional owner of the land and waters. It may be that there is a native title rightReasons for Recommendation (Page12 of 28)

National Native Title Tribunalto hold and protect that special information and knowledge within and for the native titlegroup, and perhaps to control the dissemination of that knowledge and information, ifthat is in accordance with traditional laws and customs. However, I am not satisfiedthat there is a right to employment arising from the possession of that knowledge, or aright to be paid for passing on such information to others. It appears to me that theterms upon which members of the group, who are authorised to speak about suchmatters, choose to strike with another party to divulge that information is a matter ofcontract. It is in the nature of a separate agreement. It may be in some cases that thisinformation is passed on freely, in some instances it may be for money, and in others itmay be passed on creating non-monetary obligations upon the other party. I cannot seethat there is a right to be paid for passing on this information, or a right to employmentin heritage studies, research and monitoring. Such an agreement may be dependenton the possession of knowledge about the land, and therefor possibly ancillary to thenative title right to hold and protect that knowledge in that broad sense. However, Icannot see that it is in itself a right or interest reliant upon or parasitic on a native titleright to land.The application passes this condition.Reasons for Recommendation (Page13 of 28)

National Native Title Tribunal190B7Traditional physical connection:The Registrar must be satisfied that at least one member of the native title claimgroup:(a) currently has or previously had a traditional physical connection with any partof the land or waters covered by the application; or(b) previously had and would reasonably have been expected currently to have atraditional physical connection with any part of the land or waters but forthings 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 actingon behalf of such holder of a lease.The following relevant documents have been extracted from the File Index(es) ofmaterial that has been reviewed for this application.Fol Date Description Cat Probity, WeightA1 27/1/99 Form 1 Application -Schedule MA1 27/1/99 Applicants’ affidavitspursuant to s.62(1)(a)A1 27/1/99 Affidavit of (applicant B –name deleted) (Appendix1.1 to Attachment M)MMMHighHighHighThere is a view that traditional physical connection must be proved to the satisfaction ofthe Registrar, or delegate, by the native title claim group in respect of each particularparcel or area of land and waters claimed. The contention is that it is insufficient for thenative title claim group to demonstrate that at least one of its members currently has orpreviously had a traditional physical connection to land or waters in a broader area oftraditional country. (It is of course necessary for the area claimed in the application tobe within the area asserted to be the broader traditional country.)This contention has particular significance in circumstances where a claimantapplication is lodged in response to a s 29 Notice that proposes a future use on a verydefined, and sometimes small, area of land. The claimant application may be madeonly in relation to the land that is subject to the s 29 Notice, rather than to the wholearea of what is asserted to be the broader traditional country of the native title claimgroup.For the reasons which appear earlier in this decision relating to the area over which it isnecessary for the applicant native title claim group to show an association, it appears tome that native title could continue to be held by a native title group to all the traditionalcountry, subject to valid extinguishing legislative or executive acts, where sufficientconnection has been maintained to that traditional area. This will not necessarily bedependent on a native title group having to show physical connection to every parcel orReasons for Recommendation (Page14 of 28)

National Native Title Tribunaltenement or allotment within that broader traditional area.It therefore seems to me that given the beneficial nature of the Act, its objects and itspreamble, that I should take the view that so long as there is sufficient factual materialto show that a member of the claim group has or had traditional physical connection tosome part of the traditional land or waters of the claimant group then that will besufficient.On the basis of the statements made by the applicants in Attachment M of theapplication, (read together with the applicants’ affidavits), and the affidavit of applicantB, I am satisfied that at least one member of the claim group, being (applicant B –name deleted) has a traditional physical connection with part of the land or waterscovered by the application.The applicants make the following statements at Attachment M which evidence thetraditional physical connection to the claim area of the claim group generally:• that the claim groups’ ancestors born in claim area; and• that claim group have people born and buried in area.Further, the applicants assert at paragraph 4 of Attachment M that each of the nativetitle rights and interests claimed are continuing under Barunggam laws and customs.At attachment G the group asserts that they continue living, hunting, fishing, visiting,staying, meeting and gathering (including flora and fauna and medicinal resources) ontheir traditional country.More particularly, I am satisfied that the affidavit of applicant B sufficiently evidences(applicant B – name deleted)’s traditional physical connection to the area. Relevantly, itstates that (applicant B – name deleted)’s family (back to her great grandfather – theapical ancestor, John Warner), have resided in the claim area and that (applicant B –name deleted) currently resides in Chinchilla (a town within the external boundaries ofthe claim area) and has done so for most of her life.The application passes this condition.Reasons for Recommendation (Page15 of 28)

National Native Title Tribunal190B8No failure to comply with s61A:The application and accompanying documents must not disclose, and the Registrarmust not otherwise be aware, that, because of s61A (which forbids the making ofapplications where there have been previous native title determinations or exclusiveor non-exclusive possession acts), the application should not have been made.The following relevant documents have been extracted from the File Index(es) ofmaterial that has been reviewed for this application.Fol Date Description Cat Probity, WeightA1 27/1/99 Form 1 application andAttachmentsA1 27/1/99 Applicants affidavitspursuant to s.62(1)(a)B3 26/2/99 Form 1 Amended5Application andAttachmentsMMMHighHighHighOn review of the application and accompanying documents before me, I am satisfiedthat there has been compliance with s.61A.In arriving at this conclusion, I have taken into account the following at Appendix 1, item3 of the amended application:• the exclusion of those areas which are subject to previous exclusive possessionacts done by the Commonwealth or the State of Queensland as set out in Division2B of the Native Title Act (as amended);• the statement that, where areas are subject to non-exclusive possession acts doneby the Commonwealth or the State of Queensland as set out in Division 2B of theNative Title Act(as amended), exclusive possession of those areas is not claimed;and• that the applicants have claimed the benefit of sections 47, 47A and 47B of theNative Title Act.• that the application is subject to any other extinguishment of native title which isrecognised to have occurred under the general common law of Australia.There is nothing in the application, and nor am I otherwise aware, that the applicationshould not have been brought because of the requirements of S 61A.The application passes this condition.Reasons for Recommendation (Page16 of 28)

National Native Title Tribunal190B9(a)Ownership of minerals, petroleum or gas wholly owned by the Crown:The application and accompanying documents must not disclose, and the Registrarmust not otherwise be aware, that:(a) to the extent that the native title rights and interests claimed consist or includeownership of minerals, petroleum or gas - the Crown in right of the Commonwealth,a State or Territory wholly owns the minerals, petroleum or gas;The following relevant documents have been extracted from the File Index of materialthat has been reviewed for this application.Fol Date Description Cat Probity, WeightA1 27/1/99 Form 1 Application –Attachment QMHighAt Attachment Q of the application, the applicants state that the native title rightsasserted to natural resources and land are not exclusive. The applicants claim issubject to any extinguishment that is recognised to have occurred under the generalcommon law of Australia, as well as the provisions of the NTA.The applicants therefore do not claim minerals, petroleum or gas where theCommonwealth or the State of Queensland wholly owns the minerals, petroleum orgas.The application passes this condition.Reasons for Recommendation (Page17 of 28)

National Native Title Tribunal190B9(b)Exclusive possession of an offshore place:The application and accompanying documents must not disclose, and the Registrarmust not otherwise be aware, that:(b)to the extent that the native title rights and interests claimed relate to waters inan offshore place - those rights and interests purport to exclude all other rightsand interests in relation to the whole or part of the offshore place;The following relevant documents have been extracted from the File Index(es) ofmaterial that has been reviewed for this application.Fol Date Description Cat Probity, WeightA1 27/1/99 Form 1 application –Attachment PMHighNot applicable. There are no off-shore waters covered by the application.The application passes this condition.Reasons for Recommendation (Page18 of 28)

National Native Title Tribunal190B9(c)Other extinguishment:The application and accompanying documents must not disclose, and the Registrarmust not otherwise be aware, that:(c)in any case - the native title rights and interests claimed have otherwise beenextinguished (except to the extent that the extinguishment is required to bedisregarded under subsection 47(2), 47A(2) or 47B(2)).The following relevant documents have been extracted from the File Index(es) ofmaterial that has been reviewed for this application.Fol Date Description Cat Probity, WeightA1 27/1/99 Form 1 Application andAttachmentsB3 26/2/99 Form 1 Amended5Application andAttachmentsMMHighHighI refer to the reasons above that relate to the extent that the application is subject toexclusions (from the claimed area and of native title rights and interests) that accordwith the provisions of the NTA and with the position at common law.The application and supporting material, and the Tribunal’s file do not disclose and noram I otherwise aware that the application contravenes the criteria set out ins.190B(9)(c). I note the views of Mr Justice Lee in Ward v WA 159 ALR 483 at 508 and510 that:“ There is no concept at common law of ‘partial extinguishment’ of native title by theseveral ‘extinguishments’ of one or more components of a ‘bundle of rights’. It followsthat there cannot be a determination under the Act that native title exists but that some,or all, ‘native title rights’ have been extinguished”“If native title to land is not extinguished, the extent to which native title rights areregulated, curtailed, subordinated or suspended by rights or interests in land granted bythe Crown to third parties may be required to be considered as a separate issue, butnot as a question relevant to the determination of the existence of native title.”The application passes this condition.Reasons for Recommendation (Page19 of 28)

National Native Title TribunalB. Procedural Conditions190C2Information, etc, required by section 61 and section 62:The Registrar must be satisfied that the application contains all details and otherinformation, and is accompanied by any affidavit or other document, required bysections 61 and 62.The following relevant documents have been extracted from the File Index of materialthat has been reviewed for this application.Fol Date Description Cat Probity, WeightA1 27/1/99 Form 1Application(includingattachments and affidavitspursuant to s.62(1)B35 26/2/99 Form 1 AmendedApplication andattachments (includingapplicants’ affidavitspursuant to s.62(1)B14a23/2/99 Letter (applicant B – namedeleted) to Tribunal reauthorisation processDetails required in section 6161(3) Name and address for service of applicant(s)Reasons relating to this subconditionThe requisite details have been provided.The application passes this condition.MMMHighHighHigh61(4)Names persons in native title claim group or otherwise describes the persons sothat it can be ascertained whether any particular person is one of those personsReasons relating to this subconditionFor the reasons which led to my conclusion that the requirements for s.190B(3) weremet it is my opinion that the persons in the native title claim group are describedsufficiently clearly so that it can be ascertained whether any particular person is in thatgroup.The application passes this condition.Reasons for Recommendation (Page20 of 28)

National Native Title Tribunal61(5)Application is in the prescribed form, lodged in the Federal Court, containprescribed information, and accompanied by prescribed documents and feeReasons relating to this sub-conditionThe application filed 27 January 1999, and the amended application filed 26 February1999 are in the prescribed form, contain the required information and are accompaniedby the required affidavits. An exemption was granted with respect to the payment of afiling fee.The application passes this condition.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 subconditionEach of the applicants has sworn an affidavit that addresses the required matters insection 62(1)(a)(i)-(v). Each of the applicants, save for Steven Warner, filed an affidavitappropriately sworn in respect of the original application, addressing each of the 5matters required by the Act. Each of the applicants, including Steven Warner, then filedan additional affidavit in support of the amended application filed on 26 February 1999.The only affidavit of those filed in support of the amended application that did notaddress all the required matters was that of Rosemary Bell. Her second affidavit did notcontain the details required by s 62(1)(a)(v). However her first affidavit did contain thisinformation.The application passes this condition.62(1)(c)Details of physical connection (information not mandatory)Comment on details providedThe applicants have provided detail as to traditional physical connection at Schedule Mof the application and in the affidavit of (applicant B – name deleted) (Appendix toAttachment M).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 subconditionFor the reasons which led to my conclusion that the requirements of s.190B(2) havebeen met, I am of the opinion that the information and maps provided by the applicantsare sufficient to enable the area covered by the application to be identified withreasonable certainty.The application passes this condition.Reasons for Recommendation (Page21 of 28)

National Native Title Tribunal62(2)(a)(ii)Information identifying any areas within those boundaries which are not coveredReasons relating to this subconditionFor the reasons which led to my conclusion that the requirements of s.190B(2) weremet, I am of the opinion that the information and maps contained in the application andprovided by the applicants are sufficient to enable any areas within the externalboundaries of the claim area which are not covered by the application to be identifiedwith reasonable certainty.The application passes this condition.62(2)(b)A map showing the external boundaries of the area covered by the applicationReasons relating to this subconditionFor the reasons which led to my conclusion that the requirements of s.190B(2) weremet, I am satisfied that the map provided by the applicants sufficiently identifies theboundaries of the claim area.The application passes this condition.62(2)(c)Details/results of searches carried out to determine the existence of any non-nativetitle rights and interestsReasons relating to this subconditionThe applicants state at Attachment D that no tenure history searches have beenundertaken in respect of the claim area.The application passes this condition.62(2)(d)Description of native title rights and interests claimedReasons relating to this subconditionThe rights and interests claimed by the applicants are set out at Attachment E of theapplication and are both particularised and readily identifiable.The application passes this condition.Reasons for Recommendation (Page22 of 28)

National Native Title Tribunal62(2)(e)(i)Factual basis – claim group has, and their predecessors had, and association withthe areaReasons relating to this subconditionFor the reasons which led to my conclusion that the requirements of s.190B(5)(a) havebeen met, I am satisfied that there is sufficient factual basis to support the assertionthat the native title claim group have, and the predecessors of those persons had, anassociation with the area.The application passes this condition.62(2)(e)(ii)Factual basis – traditional laws and customs exist that give rise to the claimed nativetitleReasons relating to this subconditionFor the reasons which led to my conclusion that the requirements of s.190B(5)(b) havebeen met, I am satisfied that there is sufficient factual basis to support the assertionthat there exist traditional laws and customs acknowledged by, and traditional customsobserved by, the native title claim group that give rise to the native title rights andinterests claimed.The application passes this condition.62(2)(e)(iii)Factual basis – claim group has continued to hold native title in accordance withtraditional laws and customsReasons relating to this subconditionFor the reasons which led to my conclusion that the requirements of s.190B(5)(c) havebeen met, I am satisfied that there is sufficient factual basis to support the assertionthat the native title claim group have continued to hold the native title in accordancewith their traditional laws and customs.The application passes this condition.62(2)(f)If native title claim group currently carry on any activities in relation to the areaclaimed, details of those activitiesReasons relating to this subconditionAttachment G of the application states that the native title claim group carries out thefollowing activities in relation to the land and waters:• living, hunting, fishing, visiting, staying, meeting, gathering (including flora andfauna and medicinal resources);• development, consultation and participation where appropriate in cultural andheritage studies, indigenous land and water use agreements, national parkmanagement/planning, regional forest agreements, mining studies and agreements,water allocation management plans, national heritage trust projects and new oraltered infrastructure arrangements; and• negotiations in relation to developments or mining activities in the claim area.Reasons for Recommendation (Page23 of 28)

National Native Title TribunalTherefore the application passes this condition.62(2)(g)Details of any other applications to the High Court, Federal Court or a recognisedState/Territory body the applicant is aware of (and where the application seeks adetermination of native title or compensation)Reasons relating to this subconditionSchedule H of the application states that the applicants are aware that applicationsseeking a determination of native title have been made by the Iman, Wakka Wakka andMandandangi which impinge upon the claim area.These applications are considered at p.7 below in relation to 190C(3).The application passes this condition.62(2)(h)Details of any S29 Notices (or notices given under a corresponding State/Territorylaw) in relation to the area, and the applicant is aware ofReasons relating to this subconditionSchedule I of the original application states that the applicants are not aware of theexistence of any such notices. In the amended application additional attachmentsclearly refer to the amendments to the claim as being in response to the Kogan CreekSection 29.The application passes this condition.For the reasons outlined above, I am satisfied that the requirements of s.190C(2) havebeen met.Reasons for Recommendation (Page24 of 28)

National Native Title Tribunal190C3Common claimants in overlapping claims:The Registrar must be satisfied that no person included in the native title claimgroup for the application (the current application) was a member of the native titleclaim group for any previous application if:(a)(b)(c)the previous application covered the whole or part of the area covered by thecurrent application; andan entry relating to the claim in the previous application was on the Registerof Native Title Claims when the current application was made; andthe entry was made, or not removed, as a result of consideration of theprevious application under section 190A.The following relevant documents have been extracted from the File Index of materialthat has been reviewed for this application.Fol Date Description Cat Probity, WeightA1 27/1/99 Form 1 Application M HighThere are six other claimant applications which cover part of the area the subject of thisapplication, namely QG6003/99, QG6004/99, QG6157/98, QG6162/98, QG6129/98and QG6245/98.Of those applications there are 2 applications that were entered upon, or not removedfrom, the Register of Native Title Claims as a result of the application of the registrationtest, being QG6003/99 (Iman people claim group) and QG6004/99 (Western WakkaWakka people claim group). This application is on behalf of the Barunggam peopleclaim group.I have examined the description of the native title claim groups in each of theapplications QG6003/99 and QG6004/99. I can find no evidence that establishes thatthere is, or reasonably suggests that there may be, common claimants in respect of thesubject application and any of the said overlapping claimant applications.The application passes this condition.Reasons for Recommendation (Page25 of 28)

National Native Title Tribunal190C4(a)and190C4(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 eachrepresentative Aboriginal/Torres Strait Islander body that could certify theapplication in performing its functions under that Part; orthe applicant is a member of the native title claim group and is authorised tomake the application, and deal with matters arising in relation to it, by all theother persons in the native title claim group.The following relevant documents have been extracted from the File Index of materialthat has been reviewed for this application.Fol Date Description Cat Probity, WeightA1 27/1/99 Form 1 Application –Schedule R andAttachment RA1 27/1/99 Applicants’ affidavitspursuant to s.62(1)(a)B14a26/2/99 Letter (applicant A –name deleted) to Tribunalre authorisation processB35 26/2/99 Form 1 AmendedApplication andapplicants’ affidavitspursuant to s.62(1)(a)MMMMHighHighHighHighThe application has not been certified pursuant to s.190C(4)(a).However, for the reasons stated below in respect of s.190C(5), it is my view that eachof the applicants are duly authorised to make the application and to deal with mattersarising in relation to it.The application passes this condition.Reasons for Recommendation (Page26 of 28)

National Native Title Tribunal190C5Evidence of authorisation:If the application has not been certified as mentioned in paragraph (4)(a), theRegistrar cannot be satisfied that the condition in subsection (4) has been satisfiedunless 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 hasbeen met.The following relevant documents have been extracted from the File Indexes ofmaterial that has been reviewed for this application.Fol Date Description Cat Probity, WeightA1 27/1/99 Form 1 Application andAttachments (includingapplicants’ affidavits pursuantto s.62(1)(a)B35 26/2/99 Form 1 Amended Applicationand Attachments (includingapplicants’ affidavits pursuantto s.62(1)(a)B14a 26/2/99 Letter (applicant A – namedeleted) to Tribunal reauthorisation processMMMHighHighHighEach of the applicants has sworn an affidavit that addresses the required matters insection 62(1)(a)(i)-(v). Each of the applicants, save for Steven Warner, filed an affidavitappropriately sworn in respect of the original application, addressing each of the 5matters required by the Act. Each of the applicants, including Steven Warner, then filedan additional affidavit in support of the amended application filed on 26 February 1999.The only affidavit of those filed in support of the amended application that did notaddress all the required matters was that of Rosemary Bell. Her second affidavit did notcontain the details required by s 62(1)(a)(v). However her first affidavit did contain thisinformation.Therefore each of the applicants have sworn affidavits which depose, at paragraphs 4and 5 respectively, to the following:• that they are authorised by the claim group to make the application and to deal withmatters arising in relation to it; and• the basis upon which they are so authorised – by reference to specifiedattachments/appendices to the application.• that all of the statements made in the application are trueHaving regard to the minutes of meeting dated 23 October 1998 (Attachment A,Appendix 2.2 of the application) I am satisfied that the authorisation of each of theapplicants was given by elders from both the Warner and Daylight families at a meetingheld on that day.Reasons for Recommendation (Page27 of 28)

National Native Title TribunalFurther, I am satisfied on the basis of (applicant A – name deleted)’s letter to theTribunal dated 26 February 1999, that the elders are authorised by the native title claimgroup to make decisions which bind the claim group and, in particular, that the eldershave authority to authorise the applicants to make the application and to deal withmatters arising in relation to it.The application passes this condition.End of DocumentReasons for Recommendation (Page28 of 28)