National Native Title Tribunal
REGISTRATION TEST
REASONS FOR DECISION
DECISION-MAKER:
Brendon Moore
Application Name:
Names of Applicants:
Partta
Evelyn Crafter Nappangarti
Brian Crafter Jangali on behalf of the Partta Warumungu
people (“the claimants)
Region:
NNTT No:
Federal Court No:
Date Application Made:
Northern Territory (South)
DC03/4
D6004/03
4 September 2003
The delegate has considered the application against each of the conditions contained in
s.190B and s.190C of the Native Title Act 1993 (Cwlth).
DECISION
The application is ACCEPTED for registration pursuant to s190A of the Native Title Act
1993 (Cth).
Brendon Moore
Delegate of the Registrar pursuant to
s.190, 190A, 190B, 190C, 190D
3 October 2003
Date of Decision
National Native Title Tribunal
Brief History of the Application
On 4 September 2003, the application was filed in the Northern Territory District Registry
of the Federal Court of Australia (“the Court”). The application was made by Evelyn
Crafter Nappangarti and Brian Crafter Jangali on behalf of the Partta Warumunga People
(“the claimants”).
The Northern Territory Government (NTG) was provided with a copy of the application on
8 September 2003 and requested to respond by 16 September 2003. No submissions
were received from the NTG. On 17 September 2003, a provisional assessment of the
application including the Delegate’s comments and the Geospatial Assessment 2003/1980
was provided to the applicants. On 29 September 2003, the Central Land Council (CLC),
the representative body for the applicants, lodged an Amended Application in the Federal
Court. On 29 September 2003 the amended application was referred to the Tribunal and
then served on the NTG, giving them till close of business Wednesday 1 October 2003.
On Wednesday 1 October 2003, the NTG advised by electronic mail that no submission
will be made in Partta.
Delegation Pursuant to Section 99 of the Native Title Act 1993 (Cth)
On 12 November 2002, Christopher Doepel, Native Title Registrar, delegated to members
of the staff of the Tribunal including myself all of the powers given to the Registrar under
sections 190, 190A, 190B, 190C and 190D of the Native Title Act 1993 (Cth).
This delegation has not been revoked as at this date.
Information considered when making the Decision
In considering this application I have considered and reviewed all of the information and
documents from the following files, databases and other sources:









Federal Court Applications;
Correspondence with Central Land Council (CLC);
The Registration Test File;
Determination of Native Title Representative Bodies: their gazetted boundaries;
The National Native Title Tribunal Geospatial Database and assessment;
The Register of Native Title Claims;
The National Native Title Register;
ILUA Database;
Warumungu Land Claim Report No. 31 by Land Claim Commissioner Maurice J. 8 July
1988
Please Note: All further reference to the “application” is intended to be a reference to the
amended application and all references to legislative sections refer to the Native Title
Act 1993 (Cwlth) unless otherwise stated.
National Native Title Tribunal
A.
Procedural Conditions
s.190C(2)
Information, etc., required by section 61 and section 62:
The Registrar must be satisfied that the application contains all details and other
information, and is accompanied by any affidavit or other document, required by
sections 61 and 62.
I refer to the individual reasons for decision in relation to sections 61 and 62 set out below.
I find that the procedural requirements of sections 61 and 62 have been met and
accordingly I find that the application meets the requirements of s.190C(2).
Details required in section 61
s.61(1) The native title claim group includes all the persons who, according to their
traditional laws and customs, hold the common or group rights and interests
comprising the particular native title claimed.
Reasons relating to this sub-condition
Schedule A provides a description of the native title claim group which is comprised by the
Partta Warumungu People (here after referred to as “the claimants”).
The Application makes clear that the Partta people ‘have a communal native title’ and that
they are ‘an identifiable Aboriginal community” I accept that the native title group is validly
constituted, having no reason to believe otherwise than the matters next referred to.
In deciding that the native title claim group is validly constituted I have considered the
findings of Maurice J in his capacity as Land Commissioner and in particular his
description at one point of the Partta people as being a sub-group of the Warumungu. It is
to be remembered in this context however that the Land Commisioner’s enquiries were
directed pursuant to the Aboriginal Land Rights (NT) Act and not the Native Title Act and
were thus informed by very different considerations. He nonetheless came to the
conclusioin that the Partta were the ‘traditional owners’ (within the meaning of the Act) of
this area.
The application at Schedule F, 6(a), describes the Partta as being ‘members of the
Warumungu language group’ but there is no reason for me to believe that possession of
language is in any way necessarily co-extensive with native title rights. Similarly, it seems
that the Partta share some elements of custom and law with a wider Warumungu speaking
world but that is a long way from finding that they are one and the same people and I am
of the view that a careful reading of the Land Commissioner’s Report demonstrates that
the Partta people hold the ‘common or group rights and interests comprising the particular
native title claimed’ as a Partta community. That they are not held by a wider group is
demonstrated by, for example, by the ownership of particular ‘dreaming’ sites and their law
by Partta individuals; in other words,the’particular native title claimed’ is peculiar to the
Partta people whose laws and customs give rise to it.
I do not have any other information that indicates that this group does not include, or may
not include, all the persons who hold communal native title in the area of the application
Result:
Requirements met
National Native Title Tribunal
s.61(3)
Name and address for service of applicants
Reasons relating to this sub-condition
Details provided in Part B of the application.
Result:
Requirements met
s.61(4)
Names the persons in the native title claim group or otherwise
describes the persons so that it can be ascertained whether any
particular person is one of those persons
Reasons relating to this sub-condition
An exhaustive list of names of the persons in the native title claim group has not been
provided so the requirements of section 61(4)(a) are not met.
For the reasons set out in relation to section 190B(3)(b) I find that the persons in the native
title claim group are described sufficiently clearly in Schedule A, so that it can be
ascertained if any particular person is one of those persons in accordance with section
61(4)(b).
Result:
s.61(5)
Requirements met
Application is in the prescribed form, lodged with the Federal Court,
contains prescribed information, and is accompanied by any
prescribed documents
Reasons relating to this sub-condition
The application meets the requirements of s. 61(5)(a) in that it is in the form prescribed by
Regulation 5(1)(a), Native Title (Federal Court) Regulations 1998. As required by s.
61(5)(b), the application was filed in the Federal Court on 4 September 2003 and amended
on 29 September 2003.
The application is accompanied by the affidavits of the applicants as prescribed by s.
62(1)(a) and by a map as prescribed by s.62(2)(b).
I refer to my reasons for decision in relation to those sections of the Act.
Result:
Requirements met
Details required in section 62(1)
s.62(1)(a)
Affidavits address matters required by s.62(1)(a)(i) – s.62(1)(a)(v)
Reasons relating to this sub-condition
The application filed in the Federal Court is accompanied by affidavits from the named
applicants. The applicants are identified by name and address. The affidavits of the two
applicants have been affirmed and declared before Ju-Lin O’Connor, Solicitor, Central
Land Council on 1st and 2nd September 2003.
National Native Title Tribunal
The applicants depose in paragraphs (1) to (4) of the respective affidavits accompanying
the application to the matters contained in s.62(1)(a)(i)-(iv), essentially using the words of
the statute and the requirements of these sub-paragraphs are therefore satisfied.
Section (1)(a)(v) requires that the affidavits state the basis on which the applicants are
authorised as mentioned in subparagraph (iv). Section 251B defines what it means for the
applicants to be authorised by all the persons in the native title claim group. Essentially,
authorisation is said to have occurred if it is (a) in accordance with a process of decision
making under traditional laws and customs, or, where there is no such process; (b) in
accordance with a process of decision making agreed to and adopted by the persons in
the native title claim group.
A further statement has been provided in Part A of the application under Authorisation.
The application states that the applicants are authorised to file this native title
determination application on behalf of the native title group as a result of a decision made
by the members of the native title group at a meeting held at Tennant Creek office of the
Central Land Council in the Northern Territory on 27 August 2003.
The applicants also depose in paragraph 5 of the respective affidavits dated 1st and 2nd
September 2003, that they were authorised to make this application at a meeting held at
Tennant Creek in the Northern Territory on 27 August 2003.
Further information regarding authorisation of this application is provided in the Certificate
of the representative body accompanying the application. It states:
(a)
On 27 August 2003, a meeting of the native title claim group were held at the
Central Land Council’s Tennant Creek Office to determine the native title claim
group’s intentions in relation to the future conduct of this application including
its registration (‘the meeting’). The meeting was organised and facilitated by
the Central Land Council. They were well attended by applicants, including
senior, representative members of the native title claim group. Central Land
Council regional, anthropology and land management staff attended the
meeting.
(b)
According to traditional laws and customs relating to the decision making
processes of the native title claim group, those persons who attended the
meeting had authority from the native title claim group to determine the future
course of the application, including its registration and the appointment of
applicants under s61(2) of the Native Title Act 1993.
(c)
The meeting chose the following persons to represent the native title claim
group:
Evelyn Crafter Nappangarti
Brian Crafter Jangali
(d)
Central Land Council staff consulted at the meeting at length about the
application and received instructions agreeing to its contents. During the
week following the meeting, the Central Land Council staff further consulted
each of the applicants nominated at the meeting about the contents of the
application. Each of the applicants nominated at the Tennant Creek meeting
signed affidavits pursuant to s 62(1)(a), acknowledging they were authorised
by the native title claim group to lodge the application and deal with the
matters arising in relation to it.
National Native Title Tribunal
I am satisfied that the affidavits accompanying the application are in the correct form
prescribed by the Federal Court; they address each of the matters required under s.
62(1)(a) of the NTA.
Result:
Requirements met
s.62(1)(c)
Details of traditional physical connection (information not mandatory)
Comment on details provided
Schedule G provides details of activities carried out in the application area.
Schedule M provides details of traditional physical connection covered by the application.
Details are also provided in the respective affidavits of the applicants that accompany the
application.
Result:
Provided
Details required in section 62(2) by section 62(1)(b)
s.62(2)(a)(i)
Information identifying the boundaries of the area covered
Reasons relating to this sub-condition
Schedules B and C provide details of the area claimed. These schedules also refer to a
map, which is provided. I note that in Schedule B the map referred to is labelled
Attachment B. However, in Schedule C, I find this map labelled as Attachment A which is
consistent with the documentation before me.
For the reasons which lead to my conclusion that the requirements of s.190B(2) have been
met, I am satisfied that the information provided by the applicants enables me to identify
the boundaries of the area with reasonable certainty and meets the procedural
requirements of s.62(2)(a)(i).
Result:
Requirements met
s.62(2)(a)(ii) Information identifying any areas within those boundaries which are
not covered by the application
Reasons relating to this sub-condition
For the reasons which lead to my conclusion that the requirements of s.190B(2) have been
met, I am satisfied that the information provided by the applicants is sufficient to enable the
area not covered by the application to be identified with reasonable certainty and meets
the procedural requirements of s.62(2)(a)(ii).
Result:
Requirements met
s.62(2)(b)
A map showing the external boundaries of the area covered by the
application
Reasons relating to this sub-condition
Schedules B refers to a map in Schedule C as Attachment B. However in Schedule C the
map referred to is labelled Attachment A, which I find is consistent with the documentation
before me.
National Native Title Tribunal
Result:
Requirements me
s.62(2)(c)
Details/results of searches carried out by the applicant to determine
the existence of any non-native title rights and interests
Reasons relating to this sub-condition
Schedule D of the application states that the applicants have conducted title searches of
the area claimed via the Northern Territory Registrar-General’s Office and the Northern
Territory Department of Lands, Planning and Environment, through the Northern Territory
Public Service On-line System. Results of the searches are attached and labelled as
Attachment C.
Please Note: The Department referred to above is now known as:
Department of Infrastructure Planning and Environment
Result:
Requirements met
s.62(2)(d)
Description of native title rights and interests claimed
Reasons relating to this sub-condition
A description of the native title rights and interests claimed by the applicants, including
activities in exercising these rights and interests, is contained in Schedule E of the
application together with statements which qualify these rights and interests claimed.
Result:
Requirements met
s. 62(2)(e)
The application contains a general description of the factual basis on
which it is asserted that the native title rights and interests claimed
exist and in particular that:
(i) the native title claim group have, and the predecessors of
those persons had, an association with the area; and
(ii) there exist traditional laws and customs that give rise to the
claimed native title; and
(iii) the native title claim group have continued to hold the
native title in accordance with those traditional laws and
customs.
A general description of the factual basis as required by s62(2)(e) is contained within
Schedules E, F, G and M of the application and the applicants’ affidavits. I refer to my
reasons at s190B(5) in respect of the sufficiency of the factual basis and in particular
addressing the requirements in (i), (ii) and (iii).
Result:
Requirements met
s.62(2)(f)
If native title claim group currently carry on any activities in relation to
the area claimed, details of those activities
Reasons relating to this sub-condition
National Native Title Tribunal
Schedules E and G of the application, lists a number of current activities. Further
particulars of current activities are also provided at Schedule M of the application and in
the applicants’ affidavits.
Result:
Requirements met
s.62(2)(g)
Details of any other application to the High Court, Federal Court or a
recognised State/Territory body the applicant is aware of (and where
the application seeks a determination of native title or compensation)
Reasons relating to this sub-condition
Schedule H of the application states:
“The Applicants are not aware that any other applications seeking a determination
of native title or a determination of compensation in relation to native title have
been made in relation to the whole or a part of the area covered by the application.”
Result:
Requirements met
s.62(2)(h)
Details of any s.29 notices given pursuant to the amended Act (or
notices given under a corresponding State/Territory law) in relation to
the area, which the applicant is aware of
Reasons relating to this sub-condition
Schedule I states that the area claimed is subject to the following Notices that have been
advertised in the NT News and the Koori Mail pursuant to section 29 of the Native Title Act
1993, that relate to the whole or part of the area covered by the application:
(a) Exploration Licence Application Number 23873 (ELA 23873) held by
Wirraminna Gold NL bearing the notification date of 4 June 2003;
(b) Exploration Licence Application Number 23737 (ELA 23737) held by
Wirraminna Gold NL bearing the notification date 4 June 2003.
Result:
Requirements met
For the reasons outlined above, I consider that the application passes the conditions
contained in s.190C(2).
National Native Title Tribunal
s.190C(3)
Common claimants in overlapping claims:
The Registrar must be satisfied that no person included in the native title claim
group for the application (the current application) was a member of the native title
claim group for any previous application if:
(a) the previous application covered the whole or part of the area covered by the
current application; and
(b) an entry relating to the claim in the previous application was on the Register of
Native Title Claims when the current application was made: and
(c) the entry was made, or not removed, as a result of consideration of the
previous application under section 190A.
Reasons for the Decision
If all three conditions nominated at section 190C(3) apply, I must consider whether any
person included in the native title claim group was a member of the native title claim
group(s) for any previous application(s).
A search of the Schedule of Native Title Applications and Register of Native Title Claims
on 26 September 2003 ,and the Tribunal Geospatial Unit assessment 2003/1980 dated 11
September 2003, identify that no applications overlap this current application.
I therefore do not need to consider further, conditions (b) and (c) of s.190C(3).
Result:
Requirements met
National Native Title Tribunal
s.190C(4)(a) or s.190C(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 203BE by each
representative Aboriginal/Torres Strait Islander body that could certify the
application in performing its functions under that Part: or
(b) the applicant is a member of the native title claim group and is authorised to
make the application, and deal with matters arising in relation to it, by all the
other persons in the native title claim group.
Note: s.190C(5) – Evidence of authorisation:
If the application has not been certified as mentioned in paragraph (4)(a), the
Registrar cannot be satisfied that the condition in subsection (4) has been satisfied
unless the application:
(a)
includes a statement to the effect that the requirement set out in paragraph
(4)(b) has been met; and
(b)
briefly set out the grounds on which the Registrar should consider that it has
been met.
Reasons for the Decision
The application is certified by the Central Land Council pursuant to section 203BE(1)(a) of
the Act. The Certificate is supplied at Schedule R in the application in which the
requirements of s203BE have been addressed.
The Central Land Council is the sole Aboriginal/Torres Strait Islander representative body
that could certify the application under Section 203BE. I am satisfied that it is the proper
body to provide the required certification.
The Certificate attached to the application is signed and dated 25 September 2003 by the
Native Title Manager in accordance with Resolution FC98:61 of the full Council of the
Central Land Council.
The representative body must not certify under this section, if it is of the opinion that
proper authorisation has not occurred. The CLC has provided an opinion that proper
authorisation has occurred. Therefore I am satisfied that the Central Land Council has
met its requirements under the Act and that the applicants have authority to lodge this
application and deal with matters arising in relation to it.
Result:
Requirements met
National Native Title Tribunal
B.
Merits Conditions
s.190B(2)
Description of the areas claimed:
The Registrar must be satisfied that the information and map contained in the
application as required by paragraphs 62(2)(a) and (b) are sufficient for it to be said
with reasonable certainty whether native title rights and interests are claimed in
relation to particular land and waters.
Reasons for the Decision
Map and External Boundary Description
A map is provided with the application and is identified as Attachment A. Attachment B is
the section 29 Notice as published in the NT News on 4 June 2003. Attachment C is the
result of the Titles Searches.
The map identified as Attachment A was produced by the Central Land Council on 29
August 2003 and clearly indicates the area claimed:
(a) The area covered by the application
Schedule B describes the application area as;
“The land and waters covered by the application have an area of 78 square
kilometres, being Northern Territory Portions 4071, 4428, 4073 and 4096.
The Area covered by the application and its boundaries are shown on the map
referred to in schedule C and labelled Attachment A.
(b) Any areas within those boundaries that are not covered by the application
The areas within the boundaries of Northern Territory Portions 4071, 4428, 4073 and 4096
that are not covered by this application are as follows:
1. an area of 5400 square metres being Northern Territory Portion 870 owned by
Egon Bohmert.
The Tribunal Geospatial Assessment 2003/1980, dated 11 September 2003, raised the
following:
 that the description clearly lists the NT Portions subject to the application area and
the map has highlighted these portions correctly except for part of NT Portion
4096;
 that the map has only included the northern part of this portion as being subject to
the application area (See enlargement 2);

that if the description is correct and the intent is to include the whole of NT Portion
4096 then the map should be amended to reflect this;
National Native Title Tribunal

that if the map is correct and the intention is to only include the northern part of NT
Portion 4096, then the description will need to be amended to only include the
northern part of NT Portion 4096.
On 17 September 2003, the Provisional Assessment flagged such anomalies for the
attention of the Solicitor for the Applicants seeking further clarification in respect of the
description of NT Portion 4096 by way of an amendment to the application.
This clarification was rectified by way of an amended application filed in the Federal Court
on 29 September 2003 and forwarded to the Tribunal also on 29 September 2003.
The Tribunal Geospatial Assessment 2003/2127 dated 02 October 2003 confirms that the
anomalies found in Assessment 2003/1980 have been rectified and that ‘the description
and map are now consistent and identify the application area with reasonable certainty.’
I am therefore, satisfied that the description and map are consistent and clearly identify the
application area with reasonable certainty.
Result:
Requirements met
s.190B(3)
Identification of the native title claim group:
The Registrar must be satisfied that:
(a) the persons in the native title claim group are named in the application; or
(b) the persons in that group are described sufficiently clearly so that it can be
ascertained whether any particular person is in that group.
Reasons for the Decision
To meet this condition, the description of the claim group must be sufficiently clear so that
it can be ascertained whether any particular person is a member of the native title claim
group.
A list of names of all the persons in the native title claim group has not been provided in
the application, so the requirements of section 190B(3)(a) are not met.
In the alternative, section 190B(3)(b) requires me to be satisfied that the persons in the
native title claim group are described sufficiently clearly so that it can be ascertained
whether any particular person is in that group. It is my view that the section requires such
a description to appear in the application itself.
Pursuant to the requirements of s.190B(3), the native title claim group is said to be
comprised by the Partta Warumungu Aboriginal people who according to acknowledged
traditional laws and observed customs are connected with the area described in Schedule
B (the “application area”) through:
(a) written and oral historical sources attesting to the traditional spiritual and physical
association and occupation of the Tennant Creek town area by members of the
Warumungu language group (including the applicants and their ancestors) Schedule 6(a)
National Native Title Tribunal
and it is further stated at Schedule F 9, that no other Aboriginal landholding groups are
asserted in the historical literature to occupy the application area; and
(b)descent connections is transmitted orally(Schedule F 4) and as stated at Schedule F
(e) …those affiliated with the group and its country… are called ,mangaya…kurdungurlu
[and] are jointly responsible for looking after country…an arrangement that requires
knowledge to be diffused throughout the landholding group.
It is not necessary to ascertain now whether a particular individual is a member of the
group. It is necessary only to be satisfied that, on the information provided, this can be
ascertained.
I am satisfied that the description constitutes an objective means of verifying the identity of
members of the native title claim group such that it can be clearly ascertained whether any
particular person is in the group and therefore satisfies s.190B(3)(b).
Result:
Requirements met
s.190B(4)
Identification of claimed native title:
The Registrar must be satisfied that the description contained in the application as
required by paragraph 62(2)(d) is sufficient to allow the native title rights and
interests claimed to be readily identified.
Reasons for the Decision
This subsection requires me to be satisfied that the description contained in the application
as required by s.62(2)(d) is sufficient to allow the native title rights and interests and (as
defined in s.223 of the NTA) to be readily identified.
s223(1) of the NTA states:
(1) The expression native title or native title rights and interests means the communal,
group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in
relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged,
and the traditional customs observed, by the Aboriginal peoples or Torres Strait
Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs,
have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
The applicants claim the following native title rights and interests at Schedule E:
(a) The non-exclusive right to possession, occupation, use and enjoyment of the
application area including as incidents of that entitlement;
(i)
the right to hunt on the application area, to gather and use the
products of the application area such as food, medicinal plants, wild
tobacco, timber, ochre, stone and resin and to have access to and
National Native Title Tribunal
use of water on the application area;
(ii)
the right to live on the land, to camp, to erect shelters and to move
about on the application are;
(iii)
the right to engage in cultural activities on the application area, to
conduct ceremonies, to hold meetings, to teach the physical and
spiritual attributes of places and to participate in cultural practices
relating to birth and death;
(b)
the non-exclusive right to speak for and to make decisions about the physical
and spiritual attributes of the application area;
(c)
the right to have access to, maintain and protect the sites of significance
located on the application area;
(d)
the non-exclusive right to control the access of others to the application area of
people other than people who have a statutory right of access;
(e)
the non-exclusive right to make decisions about the use and enjoyment of the
application area;
(f)
the right to determine and regulate membership of, and recruitment to, the
native title holding group.
The applicants also state at Schedule E(1):
The native title claim group is a recognisable Aboriginal community. As a community, it
possesses and maintains a form of practice of traditional laws and customs by which it has
a connection with the application area attributable to its ancestors. The traditional laws
and customs of the native title claim group determine the content of its native title. The
applicants’ native title is a communal title that is held collectively by them.
Further, the above rights are subject to qualifications in Schedule E (2), (3), (4), (5), (6)
and (7) and (8).
Identifiable Rights and Interests
Subject to my findings in s.190B(5) and (6) below, the claimed native title rights and
interests are readily identifiable.
Result:
Requirements met
s.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 interests claimed exist is sufficient to support the assertion.
In particular, the factual basis must support the following assertions:
(a) that the native title claim group have, and the predecessors of those persons
had, an association with the area;
National Native Title Tribunal
(b)
(c)
that there exist traditional laws acknowledged by, and traditional customs
observed by, the native title claim group that give rise to the claim to native
title rights and interests;
that the native title claim group has continued to hold the native title in
accordance with those traditional laws and customs.
Reasons for the Decision
If the application is to meet the requirements of this subsection I must be satisfied that
there is a sufficient factual basis to support the assertion that the “native title rights and
interests claimed exist”.
The phrases ‘native title’ and ‘native title rights and interests’ are defined, for all purposes,
in s223 of the NTA.
S.223 states:
“(1) The expression native title or native title rights and interests means the communal,
group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in
relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and
the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a
connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.”
The High Court decision in Yorta Yorta (Members of the Yorta Yorta Aboriginal Community
v Victoria [2002] HCA 58) has provided further meaning and interpretation of the phrase
‘native title rights and interests’ which will assist me in regard to the requirements of
s190B(5).
The reference to ‘traditional’ laws and customs in s.223 is a reference to a body of law and
customs acknowledged and observed by the ancestors of the claimants at the time of
sovereignty. Acknowledgement and observance of those laws and customs must have
continued substantially uninterrupted since sovereignty: see Yorta Yorta at [86] and [87].
I should also state at this point that I have relied upon the Land Commissioner’s Report as
well as the Application and its supporting and verifying affidavits in forming the opinions
set out below I do not propose to refer in detail to the Report (because of the different
basis of its enquiries) but regard it as providing independent verification of the Applicants’
assertions
The applicants state in Schedule F that the rights and interests claimed and described are
held under the traditional laws and customs of the native title claim group and are based
upon the following facts:
At Schedule F(1)….”The native title claim group and their ancestors have, since time
immemorial, including at the time when British sovereignty was asserted and at the time of
contact with non-Aboriginal people, possessed, occupied, used and enjoyed the
application area.”
Such possession, occupation, use and enjoyment continues to be exercised, as indicated
in Schedule G;
National Native Title Tribunal
At Schedule F (3 ) ”Such possession, occupation, use and enjoyment has been pursuant
to and possessed under the traditional laws and customs of the claim group, including the
following:
(a) the physical and cultural landscape; legal, social, kinship and religious systems; and
the conditions for their continuity were established by spiritual ancestors who travelled on,
above or below the land in a creative era long ago, termed Wirnkarra in the Warumungu
Aboriginal language; glossed as “The Dreaming” or “Dreamtime” in English. The Dreaming
is believed by the applicants to be the product of non-human agency and, therefore,
cannot be changed by human intervention. The Dreaming and traditional laws and
customs thus derived are held to be unchanged from the time of their creation and have
been handed on unchanged to each succeeding generation by the applicants’ ancestors;
(b)The traditional concept Wirnkarra covers a range of attributes including Dreaming
ancestors and accounts of their exploits, spiritual power, religious laws and objects, ritual,
designs and songs, and explicit and implicit events and directives of both a 'sacred' and
'everyday' nature;
(c)The travels and actions of Dreaming beings provide an ongoing foundation for the
current exercise of rights and interests in relation to the land and waters and the spiritual
beliefs associated with it;
(d) Sites associated with a predominant Dreaming or Dreamings form a "country" or
"countries", as they are called in Aboriginal English;
(e) Within the native title claim group, those affiliated with the group and its country
especially but not only through father’s father (FF) are called mangaya. Within the native
title claim group, those affiliated with the group and its country, especially but not only
through mother’s father (MF), father’s mother (FM) and mother’s mother (MM) are called
kurdungurlu. Under the applicants’ traditional laws and customs, mangaya and
kurdungurlu are jointly responsible for looking after country, an arrangement that requires
knowledge to be diffused throughout the landholding group, relative to considerations such
as age, gender, residence, and seniority. Mangaya and kurdungurlu perform different and
complementary roles” ;
At Schedule F (4) ”Such traditional law and custom has been passed on by traditional
modes or oral transmission and teaching from the generations preceding the present
generations, to the present generations of persons comprising the native title claim group.
The claimants’ knowledge of descent connections is transmitted orally, and sometimes
supplemented by written historical sources. It is well documented throughout Aboriginal
Australia that Aboriginal genealogical memory is shallow and that individuals beyond the
grandparental level are rarely remembered. Beyond this level, ancestors are ultimately
believed to be spiritually descended from the Dreaming ancestors. In so far as it is
necessary for them to do so, the claimants will ask the Court to infer that the ancestors of
the named ancestors in paragraph 5(a) of Schedule A were, under traditional laws and
customs, entitled to possess, occupy, use and enjoy the application area since a time prior
to the assertion of British sovereignty”
At Schedule F(5) ”The native title claim group continues to acknowledge, observe and
engage with those traditional laws and customs passed on to them by their ancestors.”
At Schedule F(6) “By those laws and customs, the native title claim group has, and their
ancestors have had, a spiritual, physical and historical connection with the application
area, as evidenced by the following:
National Native Title Tribunal
(a) Written and oral historical sources attest to the traditional spiritual and physical
association and occupation of the Tennant Creek town area and the application area, by
members of the Warumungu language group (including the claimants and their ancestors)
at the time of non-Aboriginal incursion into, and settlement of, the region, and continuing to
the present day. It is asserted that these sources were accepted by Justice Maurice in the
Warumungu Land Claim, in an inquiry involving the native title claim group under the
Aboriginal Land Rights (Northern Territory) Act 1976; That report also provides
considerable detailed information about the traditional connections of the Partta people
with their country which supports and in many respects expands on the material in the
application. There is no need to reproduce that material here. It can all be found principally
in Chapter 20 of that Report and is accepted and relied upon by me.
(b) The applicants’ continuing connection with the application area is based on their own
experience and on knowledge received from their ancestors since time immemorial.”
Schedules G asserts that members of the claim group have continuously carried out
activities on the application area in accordance with custom and tradition and provides a
list of current activities on and associated with the application area. These activities
include:
1.
Access and traverse the land.
2.
Derive sustenance, control the use of and access to food resources, and hunt and
gather on the land and waters.
3.
Collect and control the use of and access to natural resources, including water,
timber and bush medicines, on the land and waters.
4.
Share, exchange and / or trade resources derived on and from the land and waters.
5.
Teach children on and about the land and waters.
6.
Maintain and pass on geographical and spiritual knowledge about the land and
waters and knowledge of the location and use of natural resources, in culturally
appropriate ways.
7.
Hold religious beliefs, laws and property (including stories, songs, ceremonies,
objects and designs) pertaining to the land and waters.
8.
Hold ceremonies and meetings for spiritual or secular purposes pertaining to the land
and waters.
9.
Practice cultural beliefs concerning rites of passage pertaining to the land and
waters.
10.
Care for sites pertaining to the land and waters in accordance with spiritual
obligations.
11.
Regulate access to parts of the land and waters and related beliefs according to
gender, age, status of knowledge, initiation status or any other culturally appropriate
reason.
12.
Recognise certain connections of individuals and groups, and the seniority of certain
individuals within groups, to particular parts of the land and waters.
National Native Title Tribunal
13.
Prevent physical and spiritual harm to the land and waters by maintaining, holding
and transmitting religious and secular rights, laws and responsibilities in accordance
with their laws and customs.
15.
Maintain, hold and transmit religious and secular rights, laws and responsibilities
pertaining to the land and waters, in accordance with traditional laws and customs of
trusteeship.
16.
Determine and regulate membership, recruitment to and transmission of rights and
duties concerning the land and waters within the landholding group.
17.
Regulate others in relation to any of these things.
18.
Residing on the Application Area.
Schedule M states that the applicants have maintained a traditional physical connection
with the land and waters covered by the application.
Further information supporting the adequacy of the factual basis is contained in the
applicants’ affidavits where they refer to the traditional laws and customs currently
acknowledged and observed by the claim group.
(a) the native title claim group have, and the predecessors of those persons had, an
association with the area
In considering this section, I have had particular regard to the affidavits of the applicants,
namely Evelyn Crafter Nappangarti and Brian Crafter Jangali. On the basis of the
information contained in the Schedules and the Affidavits it is clear that the native title
claim group have an association with the claim area and are descended from people who
also had an association with the claim area.


Evelyn Crafter Nappangarti, paras 4, 5 & 7 (a), (b), (c), (d) & (e);
Brian Crafter Jangali, paras 4, 5 & 7 (a), (b) & (c).
(b) that there exist traditional laws acknowledged and traditional customs observed
by the native title claim group that give rise to the claim to native title rights and
interests.
In considering this section, I have had particular regard to the affidavits of the applicants,
namely Evelyn Crafter Nappangarti and Brian Crafter Jangali. On the basis of the
information contained in the Schedules and the Affidavits it is clear that there exist
traditional laws acknowledged and traditional customs observed by the native title claim
group that give rise to the claim to native title rights and interests.


Evelyn Crafter Nappangarti, paras 4, 5 & 7(c), (d) & (e).
Brian Crafter Jangali, paras 4, 5 & 7 (c)
(c) that the native title claim group has continued to hold the native title in
accordance with those traditional laws and customs
For the reasons set out in 190B(5)(b) and having regard to the same material and
Schedules F, G and M and the findings of Land Commissioner Maurice J, I am satisfied
National Native Title Tribunal
that there is a factual basis for the claim group continuing to hold native title in accordance
with those traditional laws and customs.
Conclusion
I am satisfied that the factual basis on which it is asserted that the native title rights and
interests claimed exist, is sufficient to support the assertions described for each of the
criteria set out in s.190(B)(5).
Result:
Requirements met
s.190B(6)
Prima facie case:
The Registrar must consider that, prima facie, at least some of the native title rights
and interests claimed in the application can be established.
Reasons for the Decision
In applying this section of the registration test, I have taken “prima facie” to mean “at first
sight; on the face of it; or as it appears at first sight without investigation” see North
Ganalanja Aboriginal Corporation & The Waanyi People v State of Queensland (1996)
185 CLR 595.
Before assessing each of the eight rights and interests claimed in turn, I shall firstly
examine the land tenure of the area of the claim. This examination has become necessary
in order to apply the findings of the High Court in the Ward case.
Land Tenure in the application area:
Information provided by the applicants in Schedule D and Attachment C identifies the
following in the application area:




Northern Territory Portion 4071
Northern Territory Portion 4428
Northern Territory Portion 4073 and
Northern Territory Portion 4096
The applicants have provided a copy of the Search Certificate for all of the above parcels
which have been identified as estates in fee simple, registered on 7 March 2002 and held
in the name of the Parrta Land Aboriginal Corporation.
Aboriginal Freehold under Aboriginal Land Rights (NT) Act (ALRA)
Section 23B(9) NTA provides that any grant or vesting under legislation such as the ALRA
is not a previous exclusive possession act. Therefore, Aboriginal freehold granted under
the ALRA does not of itself extinguish native title.
National Native Title Tribunal
1
Pareroultja v Tickner, is authority for the proposition that a grant of freehold to an
Aboriginal Land Trust under the ALRA does not extinguish native title over the land in
question. Whilst the High Court subsequently, in rejecting an application for special leave
to appeal, indicated that that rejection did not necessarily lead to the conclusion that the
Court accepted those findings, I am nonetheless of the view that the case remains binding
on me. It has subsequently been considered and applied.
Section 47A is attracted in respect of ALRA land if:


the land is freehold at the time the application was made – in this case the deed
of grant is dated 7 March 2002 and the application was made on 4 September
2003; and
when the application was made, one or more members of the native title group
was in occupation of the area – in this case, both applicants have provided
evidence in support of occupancy in the affidavits at para 7 (a) respectively.
The Full Federal Court in WA v Ward took a broad view of what is meant by “occupy” for
the purposes of s 47A(1)(c). The requirement will be met where a claimant member is one
of many people who share occupancy of the land. It can be satisfied even if the relevant
person is rarely present on the land so long as the person makes use of the land as and
when the person wishes to do so.2
On the documents before me, the occupation requirement is met by the affidavit evidence
of the applicants at para 7 (a). Therefore, I find that s 47A does apply.3 Furthermore, if
there is any historical tenure that extinguishes native title, such extinguishment can be
disregarded.
The Solicitor for the NT was provided with a copy of the original application on 8
September 2003 requesting submissions by 16 September 2003. However, no response
was received.
On 29 September 2003, the Solicitor for the NT was provided with a copy of the amended
application and requested to respond by close of business Wednesday 1 October 2003.
On 1 October 2003, the NTG advised by electronic mail that no submission will be made in
Parrta.
Identifiable Rights and Interests
Under my reasons for decision in relation to s190B(4) above, I determined that the rights
and interests listed at Schedule E 1 were readily identifiable as native title rights and
interests and that (a), (b), (c), (d), (e) and (f) are sufficiently described to allow them to be
readily identified:
a) the non-exclusive right to possession, occupation, use and enjoyment of the
application area including as incidents of that entitlement;
(i) the right to hunt on the application area, to gather and use the products of
the application area such as food, medicinal plants, wild tobacco, timber,
ochre, stone and resin and to have access to and use of water on the
application area;
1
(1993) 117 ALR 206
(2000) 170 ALR 159 at para 449
3
Note s 47A does not enable prior extinguishment to be disregarded if there is a grant of freehold for the
provision of services such as health and welfare services (s47A(2)(b)).
2
National Native Title Tribunal
(ii) the right to live on the land, to camp, to erect shelters and to move about
on the application are;
(iii) the right to engage in cultural activities on the application area, to
conduct ceremonies, to hold meetings, to teach the physical and spiritual
attributes of places and to participate in cultural practices relating to birth
and death;
Information in the application provides evidence of activities involving possession,
occupation, use and enjoyment of the claim area and areas approximate to the claim area
by members of the claim group. Members of the group assert that they have continuously
carried out activities on the application area in accordance with customs and traditions and
provide details at Schedules E, F, G and M.
The application states at Schedule F (9) that “No other Aboriginal landholding groups are
asserted in the historical literature to occupy the application area as of traditional right.
Nor do any other landholding groups or language groups today assert the right to possess,
occupy, use and enjoy the application area in accordance with traditional laws and
customs.”
This right and interest claimed is particularised by providing examples by the claim group
of activities on the application area.
The affidavits and information contained in the application provide evidence of members of
the native title claim group asserting or exercising these rights, some of which is detailed
below:


Evelyn Crafter Nappangarti, paras 7 (a), (b), (c), (d) and (e);
Brian Crafter Jangali, paras 7 (a), (b) and (c).
Further activities undertaken by the claim group are provided in Schedules E and G.
At present, a non-exclusive right to possession, occupation, use and enjoyment cannot,
prima facie, be established, following O’Loughlin’s comments in De Rose v South Australia
[2002] FCA 1342 at [918] to [920], that such a description is ‘inappropriate’ and the High
Court’s comments on this point, including the statement that ‘it will seldom be appropriate
or sufficient to express the nature and extent of the relevant native title rights and interests’
by using this description: see Ward at [51], [48], [52], [53] and [89].
This is not to say that such a right cannot be recognised as a native title right by a court.
While the joint judgment in Ward acknowledges this, the judges expressed the review that
this would be a rare case; see [51]. However, as the standard for the registration test is
‘prima facie’, the recent court decisions indicate that, on the face of it, such a right does
not meet the requirements of s.190B(6).
Not withstanding the information contained in the application and affidavits in support of
this right, I am of the view that this right cannot be established.
(b) the non-exclusive right to speak for and to make decisions about the physical
and spiritual attributes of the application area;
The affidavits and information contained in the application provide evidence of members of
the native title claim group asserting or exercising these rights, some of which is detailed
below:
National Native Title Tribunal


Evelyn Crafter Nappangarti, paras 1, 2, 3, 4, 5, 6 and 7;
Brian Crafter Jangali, paras 1, 2, 3, 4, 5, 6 and 7.
Further information is provided in Schedules E and G.
I note the findings of Justice of O’Loughlin in De Rose v South Australia [2002] FCA 1342,
at [553], [917], [920] and [922], where his Honour concludes that the right to make
decisions about the use and enjoyment of an area of a previous non-exclusive possession
act, can be established in so far as it relates to the use and enjoyment of the claim area
and resources by Aboriginal people who are governed by the traditional laws and customs
acknowledged and observed by the native title holders to the claim area.
As such I find that the right to speak for and make decisions about the physical and
spiritual attributes of the application area, is established in so far as they relate to the use
and enjoyment of the claim area and resources by Aboriginal people who are governed by
the traditional laws and customs acknowledged and observed by the native title holders to
the claim area.
(c) the right to have access to, maintain and protect the sites of significance located
on the application area;
The affidavits and information contained in the application provide evidence of members of
the native title claim group asserting or exercising these rights, some of which is detailed
below:


Evelyn Crafter Nappangarti, paras 5, 7(a), (b) and (c):
Brian Crafter Jangali, paras 5, 7(a) and (b).
Further activities undertaken by the claim group are provided in Schedules E and G.
I find that the right to have access to maintain and protect the sites of significance located
on the application area is established in relation to the claim area.
(d) the non-exclusive right to control the access of others to the application area of
people other than people who have a statutory right of access;
The affidavits and information contained in the application provide evidence of members of
the native title claim group asserting or exercising this right, some of which is detailed
below:


Evelyn Crafter Nappangarti, paras 5, 6
Brian Crafter Jangali, paras 5, 6
Further information is provided in Schedules E and G.
I note the judgement of Justice O’Loughlin in De Rose Hill, where his Honour rejected the
argument by the State that the grant of the lease extinguished all native title rights to
control access to and use of the area. At [553] His Honour concludes that the grants do
not extinguish residual rights of control of access and use as between the holders of native
title themselves and any other Aboriginal people who seek access to or use of the claim
area in accordance with the traditional laws and customs. See also [917].
National Native Title Tribunal
As such I find that the non-exclusive right to control the access of others to the application
area of people other than people who have a statutory right of access, in so far as it
relates to Aboriginal people who are governed by the traditional laws and customs
acknowledged and observed by the native title holders, is established in relation to the
claim area.
(e) the non-exclusive right to make decisions about the use and enjoyment of the
application area;
The affidavits and information contained in the application provide evidence of members of
the native title claim group asserting or exercising these rights, some of which is detailed
below:


Evelyn Crafter Nappangarti, paras 4, 5, 7 (b), (c), (d) and (e);
Brian Crafter Jangali, paras 4, 5, (b) and (c).
Further information is provided in Schedules E and G.
As I have stated in (d) above, I refer to the reasoning of Justice O’Loughlin in De Rose Hill
at [553] and [917], that the non-exclusive right to make decisions about the use and
enjoyment of the application area, in so far as it relates to Aboriginal people who are
governed by the traditional laws and customs acknowledged and observed by the native
title holders, is established in relation to the claim area.
(f) the right to determine and regulate membership of, and recruitment to, the native
title holding group.
I find that the information contained in the application provides evidence of members of the
native title claim group asserting this right.
Also information on the traditional laws and customs governing membership of, and
recruitment to, the native title claim group is provided in Schedule A. The native title claim
group are said to be connected to the application area in part through spiritual, religious
and physical associations, through descent from ancestors connected with the application
area, and through non-descent based connections where it is accepted, in accordance
with traditional laws and customs, that such persons are included by senior members of
the group, who are themselves descendants of the ancestors.
Further activities undertaken by the claim group are provided in Schedule G and include
determining and regulating membership, recruitment to and transmission of rights and
duties concerning the area within the landholding group.
I find that this right is established in relation to the claim area for reasons stated above and
on the findings of Aboriginal Land Commissioner, Maurice J in the Warumungu Land
Claim.
Conclusion
I find that the rights and interests identified in s.190B(4) can be established on a prima
facie basis, as below:
National Native Title Tribunal
(b) The right to speak for and make decisions about the physical and spiritual
attributes of the application area;

is established in so far as they relate to the use and enjoyment of the claim area
and resources by Aboriginal people who are governed by the traditional laws and
customs acknowledged and observed by the native title holders to the claim area;
(c) The right to have access to, maintain and protect the sites of significance
located on the application area;

is established in relation to the claim area;
(d) The non-exclusive right to control the access of others to the application area of
people other than people who have a statutory right of access;

is established in relation to the claim area in so far as it relates to Aboriginal
people who are governed by the traditional laws and customs acknowledged and
observed by the native title holders;
(e) The non-exclusive right to make decisions about the use and enjoyment of the
application area;
 is established in relation to the claim area in so far as it relates to Aboriginal people
who are governed by the traditional laws and customs acknowledged and observed
by the native title holders;
(f) the right to determine and regulate membership of, and recruitment to, the native
title holding group;
 is established in relation to the claim area.
Result:
Requirements met
s.190B(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 by the application; or
(b) previously had and would reasonably have been expected currently to have a
traditional physical connection with any part of the land or waters but for
things done (other than the creation of an interest in relation to the land or
waters) by:
(i)
the Crown in any capacity; or
(ii)
a statutory authority of the Crown in any capacity; or
(iii)
any holder of a lease over any of the land or waters, or any person
acting on behalf of such a holder of a lease.
Reasons for the Decision
National Native Title Tribunal
This section requires that I am satisfied that at least one member of the native title claim
group currently has, or previously had, a traditional physical connection with any part of
the land covered by the application.
Traditional physical connection is not defined in the Native Title Act. I am interpreting this
phrase to mean that physical connection should be in accordance with the particular
traditional laws and customs relevant to the claim group.
I have had regard to statements contained in the application including Schedules E, G and
M together with the information contained in the affidavits of the applicants and I am
satisfied that the applicants have provided a description of their traditional physical
connection. The applicants depose that the statements are true. Schedule G lists activities
currently being carried out by the native title claim group, and Schedules E and M detail
traditional physical connection to the land or waters covered by the application by one or
more members of the native title claim group.
Result:
Requirements met
s.190B(8)
No failure to comply with s.61A:
The application and accompanying documents must not disclose, and the Registrar
must not otherwise be aware, that because of s.61A (which forbids the making of
applications where there have been previous native title determinations or exclusive
or non-exclusive possession acts), the application should not have been made.
Reasons for the Decision
S61A(1) – Native Title Determinations
A search of the National Native Title Register shows no approved determinations of native
title for the application area claimed in this application.
S61A(2) - Previous exclusive possession acts
Previous exclusive possession acts under s.23B have been excluded from the area of the
application by virtue of Schedule E(5) and (7), and the application complies with s.61A(2).
The grant of an estate in fee simple pursuant to the NLRA to the Partta Aboriginal Land
Corporation is not a previous exclusive possession act; see s23B9 and my consideration
of land tenure and reasons in relation to s190B6
S61A(3) - Previous non-exclusive possession acts
At para 7 of Schedule E, the applicants state that:
“To the best of the applicants’ knowledge, there have not been any …previous nonexclusive possession acts …in relation to any part of the area covered by the application”.
S61A(4) - s.47, 47A 47B
National Native Title Tribunal
The following details are provided at Schedule L:
1.
The area, covered by the application are estates in fee simple that are held by the
Partta Land Aboriginal Corporation and occupied by members of the native title
claim group.
2.
The Partta Land Aboriginal Corporation is incorporated under the Aboriginal
Councils and Associations Act 1976.
3.
The Object of the Rules of the Partta Land Aboriginal Corporation is as follows:
The object for which the Association is established is to hold title to land for
the benefit of Aboriginals entitled by Aboriginal tradition to the use or
occupation of the land whether or not the traditional entitlement is qualified
as to place, time, circumstances, purpose or permission
4.
The Rules of the Partta Land Aboriginal Corporation are attached and labelled
Attachment D.
5.
Any extinguishment of native title rights and interests claimed in relation to the area
covered by the application should be disregarded pursuant to paragraph
47A(1)(b)(ii) of the Native Title Act 1993.
Conclusion
I am satisfied the application meets the requirements of s 190B(8).
Result:
Requirements met
s.190B(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 the right of the
Commonwealth, a State or Territory wholly owns the minerals, petroleum or
gas;
Reasons for the Decision
The applicants state in Schedule Q:
“The applicants do not claim ownership of minerals, petroleum or gas wholly owned
by the Crown. The applicants assert that the Crown does not wholly own minerals,
petroleum or gas in the area subject to the application”.
In their application the claimants acknowledge in Schedule E (4) that:
(a)
their native title rights and interests are subject to all valid and current laws
National Native Title Tribunal
of the Commonwealth and the Northern Territory; and
(b)
the exercise of their native title rights and interests may, in the past have
been, or currently be, regulated, controlled, curtailed, restricted, suspended
or postponed by reason of the existence of valid concurrent rights and
interests in others by or under such laws.
I am satisfied that these exclusion clauses provide sufficient clarity to ensure that the
application complies with the requirements of s.190B(9)(a).
Result:
Requirements met
s.190B(9)(b)
Exclusive possession of an offshore place:
The application and accompanying documents must not disclose, and the Registrar
must not be otherwise aware, that:
(b) to the extent that the native title rights and interests claimed relate to waters in
an offshore place – those rights and interests purport to exclude all other
rights and interests in relation to the whole or part of the offshore place;
Reasons for the Decision
Not applicable
Result:
Requirements met
s.190B(9)(c)
Other extinguishment:
The application and accompanying documents must not disclose, and the Registrar
must not be otherwise aware, that:
(c) in any case – the native title rights and interests claimed have otherwise been
extinguished (except to the extent that the extinguishment is required to be
disregarded under subsection 47(2), 47A(2) or 47B(2).
Reasons for the Decision
The applicants have provided a statement in Schedule E(5) stating that: To the extent that
the application area is not covered by a previous exclusive possession act under s 23B of
the Act, the applicants claim that native title rights and interests confer possession,
occupation, use and enjoyment to the exclusion of all others in relation to the application
area.
In the light of my reasons in relation to s.190B(6) and the above statement, I am satisfied
that there is nothing in either the application or the accompanying documents that
discloses that the native title rights and interests claimed have otherwise been
extinguished. Nor am I aware otherwise, that this is the case.
The application meets the requirements of s.190B(9)(c ).
Result:
Requirements met
End of Document