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National Native Title Tribunal National Native Title

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									                               National Native Title Tribunal

                  REASONS FOR DECISION COVER SHEET
                         REGISTRATION TEST


REGISTRAR’S DELEGATE                      Christopher Uren

APPLICATION NAME                          Kalamaia Kabu(d)n

NAMES OF APPLICANTS                      Brian Champion Snr, Clem „Kingy‟ Donaldson, George
                                         A. Champion, James Champion, Darren Indich

NNTT NO.                                  WC 97/100

FEDERAL COURT NO.                         WG 6216/98

NNTT REGION                               North West/Goldfields, Western Australia

DATE APPLICATION MADE                     25 November 1997


I have considered the application against each of the conditions contained in ss190B and 190C of
the Native Title Act 1993.

DECISION

The application is NOT ACCEPTED for registration pursuant to s190A of the Native Title Act.

Written notice of the decision and the reasons for the decision are to be provided to the applicants.




                                                                   ____29 March 2001____
Christopher Uren                                                          Date
Delegate of the Registrar pursuant to
sections190, 190A, 190B, 190C, 190D.
                                      National Native Title Tribunal




Brief History of the Application and Procedural Fairness Details
    19 December 2000: The Kalamaia Kabu(d)n application was amended in the Federal Court.
     Immediately following the Notice of Motion to Amend the application in the Federal Court,
     [NAME OMITTED] spoke to the Tribunal Case Manager for the Kalamaia application
     [NAME OMITTED] stated that the applicants would like the NNTT to apply the registration
     test to the amended application as soon as possible.
    20 December 2000: [NAME OMITTED] telephoned the NNTT and requested details of the
     registration test timeframe. She reiterated the applicants‟ desire for an urgent registration test
     decision.
    02 January 2001: [NAME OMITTED] telephoned the NNTT and again requested details of
     the registration test timeframe. She again reiterated the applicants‟ desire for an urgent
     registration test decision.
    10 January 2001: [NAME OMITTED] posted a copy of the Orders of District Registrar Jan of
     19 December 2000 to the NNTT.
    15 January 2001: Letter from NNTT to [NAME OMITTED] stating that the Tribunal had
     received a copy of the amended Kalamaia application.
    16 January 2001: [NAME OMITTED] telephoned the NNTT and requested details of the
     registration test timeframe. [NAME OMITTED] reiterated the applicants‟ desire for an urgent
     registration test decision.
    19 January 2001: [NAME OMITTED] telephoned the NNTT and requested details of the
     registration test timeframe. [NAME OMITTED] reiterated the applicants‟ desire for an urgent
     registration test decision.
    19 January 2001: [NAME OMITTED] wrote to NNTT President in relation to NNTT service
     delivery.
    25 January 2001: Meeting with Kalamaia applicants/claimants at NNTT Perth office.
     [NAMES OMITTED] attended. A verbal preliminary assessment of the amended Kalamaia
     application was provided to the applicants/claimants during this meeting.
    25 January 2001: [NAME OMITTED] telephoned the NNTT. A verbal preliminary
     assessment of the amended Kalamaia application was provided to him at that time.
    01 February 2001: NNTT President wrote to [NAME OMITTED] regarding NNTT service
     delivery.
    02 February 2001: NNTT State Manager (WA) wrote to [NAME OMITTED] regarding
     NNTT service delivery and the application of the Registration test to the amended Kalamaia
     application. Copies of Federal Court orders and a detailed list of Section 29 Notices were
     posted to [NAME OMITTED] with this letter.
    02 February 2001: [NAME OMITTED] rang the NNTT regarding the provisional assessment
     of the application.
    05 February 2001: [NAME OMITTED] rang the NNTT regarding the inclusion of [NAME
     OMITTED] and other issues in relation to the Central West Goldfields application (WC
     99/29).
    09 February 2001: Letter from NNTT to [NAME OF ORGANISATION OMITTED]
     regarding the provision of potentially adverse material, provided by the [NAME OF
     ORGANISATION OMITTED] in relation to various overlapping applications, to the
     Kalamaia applicants. Copies of the potentially adverse material were included with this letter.
    09 February 2001: Letter from NNTT to [NAME OMITTED] regarding potentially adverse
     material. This letter details timeframes for the provision of material/submissions (ie. by 09
     March 2001) and indicates a planned registration test decision date (ie. by 30 March 2001).
    12 February 2001: Telephone discussion between NNTT and [NAME OF ORGANISATION
     OMITTED] regarding potentially adverse material from the [NAME OF ORGANISATION
     OMITTED].
    13 February 2001: Telephone discussion between NNTT and [NAME OF ORGANISATION
     OMITTED] regarding potentially adverse material from the [NAME OF ORGANISATION
     OMITTED].

Reasons for Decision                                                                       page 2
                                    National Native Title Tribunal




    13 February 2001: [NAMES OMITTED] telephoned the NNTT.
    14 February 2001: [NAME OMITTED] telephoned the NNTT.
    19 February 2001: Letter from NNTT to [NAME OF ORGANISATION OMITTED]
     regarding potentially adverse material from the [NAME OF ORGANISATION OMITTED].
    22 February 2001: Meeting with [NAME OF ORGANISATION OMITTED] and NNTT
     regarding potentially adverse material from the [NAME OF ORGANISATION OMITTED].
    23 February 2001: Submission from [NAME OF ORGANISATION OMITTED] to NNTT.
    26 February 2001: [NAME OMITTED] telephoned the NNTT.
    27 February 2001: Letter from NNTT to [NAME OF ORGANISATION OMITTED]
     regarding potentially adverse material from the [NAME OF ORGANISATION OMITTED].
    28 February 2001: [NAME OMITTED] telephoned the NNTT twice and discussed the
     Kalamaia registration test with the State Manager (WA).
    01 March 2001: [NAMES OMITTED] telephoned the NNTT. Faxed submission from the
     applicants received and acknowledged by NNTT.
    01 March 2001: Letter and fax from NNTT to [NAME OMITTED] seeking further
     clarification regarding [NAME OMITTED]. Timeframes for the receipt of submissions from
     the applicants (ie. by 09 March 2001) and a planned registration test decision date (ie. by 30
     March 2001) were included within this letter.
    02 March 2001: Letter and fax from NNTT to [NAME OMITTED]. Provision of potentially
     adverse material to the applicants. Timeframes for the receipt of submissions from the
     applicants (ie. by 09 March 2001) and a planned registration test decision date (ie. by 30
     March 2001) were included within this letter.
    02 March 2001: Faxed submission from the applicants received and acknowledged by NNTT.
     [NAME OMITTED] telephoned the NNTT and spoke to a Senior Case Manager (CMU).
    06 March 2001: [NAME OMITTED] telephoned the NNTT three times and spoke to Senior
     Case Manager (CMU).
    07 March 2001: Further potentially adverse material faxed and posted to applicants.
    07 March 2001: [NAME OMITTED] telephoned the NNTT four times and spoke to a Senior
     Case Manager (CMU). [NAME OMITTED] sent a fax to the NNTT requesting an extension
     of time for the provision of submissions to the NNTT in relation to the registration test.
    08 March 2001: [NAME OMITTED] telephoned the NNTT four times and spoke to the
     Manager of Office Services.
    09 March 2001: [NAME OMITTED] telephoned the NNTT three times and spoke to a Senior
     Case Manager (CMU). [NAME OMITTED] requested an extension of time for the provision
     of submissions in relation to the registration test.
    09 March 2001: Fax sent to applicants from NNTT regarding request for time extension. Their
     fax of 07 March 2001 was unsigned. Submission received from the applicants.
    12 March 2001: Letter and fax sent to the applicants from NNTT regarding their request for an
     extension of time for the provision of submissions in relation to the registration test. An
     extension of time was granted until close of business on 19 March 2001.
    12 March 2001: [NAME OMITTED] telephoned the NNTT twice and spoke to a Senior Case
     Manager (CMU). E-mailed submission received from the applicants and acknowledged by
     NNTT.
    14 March 2001: [NAME OMITTED] telephoned the NNTT twice. Faxed submission from
     applicants received and acknowledged by NNTT.
    15 March 2001: [NAME OMITTED] telephoned the NNTT twice. Submission in the form of
     a cassette tape from the applicants received and acknowledged (by fax and E-mail) by the
     NNTT.
    16 March 2001: [NAME OMITTED] telephoned the NNTT three times and spoke to a Senior
     Case Manager (CMU). Information which he requested was then faxed to him.
    20 March 2001: [NAME OMITTED] telephoned the NNTT twice.
    21 March 2001: [NAME OMITTED] telephoned the NNTT twice and spoke to a Senior Case
     Manager (CMU). Letter from NNTT President posted to [NAME OMITTED].


Reasons for Decision                                                                    page 3
                                         National Native Title Tribunal




    22 March 2001: Telephone discussion between NNTT and [NAME OF ORGANISATION
     OMITTED] regarding meeting the [NAME OF ORGANISATION OMITTED] had conducted
     with the Kalamaia group.
    28 March 2001: [NAME OMITTED] telephoned the NNTT four times. Fax from NNTT sent
     to applicants regarding progress of registration test and other issues of concern.

Information considered when making the Decision

In determining this application, where applicable, I have considered and reviewed all of the
information and documents from the following files, databases and other sources:

    Registration Test File, Legal Services File and Federal Court Application and original
     application for native title claim WC 97/100, WC 95/27, WC 98/27, WC 99/29, WC 96/10,
     WC 97/25, WC 97/76, WC97/99, 99/2, 97/105, 99/30.

    National Native Title Tribunal Geospatial Database

    Register of Native Title Claims

    Schedule of Native Title Claimant Applications

    The Native Title Register

    Determination of Representative ATSI Bodies: their gazetted boundaries

    Additional information provided to the NNTT in support of the amended Kalamaia
     application.

    Affidavits provided by the Applicants:

         Affidavit of [NAME OMITTED] sworn on 19 January 2001
         Affidavit of [NAME OMITTED] sworn on 19 January 2001
         Affidavits of [NAME OMITTED] sworn on 29 November 2000 and 02 March 2001
         Affidavit of [NAME OMITTED] sworn on 17 November 2000
         Affidavit of [NAME OMITTED] sworn on 23 November 2000
         Affidavit of [NAME OMITTED] sworn on 23 November 2000
         Affidavit of [NAME OMITTED] sworn on 17 November 2000
         Affidavit of [NAME OMITTED] sworn on 25 November 2000
         Affidavit of [NAME OMITTED] sworn on 25 January 1999
         Affidavit of [NAME OMITTED] sworn on 20 April 1999




Note:
1.   All references to legislative sections refer to the Native Title Act 1993 unless otherwise specified.
2.   Information considered relevant to the application of the registration test is identified under each
     condition or sub-condition in these Reasons for Decision.



Reasons for Decision                                                                                 page 4
                                            National Native Title Tribunal




A. Procedural Conditions
                       Information, etc, required by section 61 and section 62:
                       The Registrar must be satisfied that the application contains all details and other
 190C2                 information, and is accompanied by any affidavit or other document, required by
                       sections 61 and 62.


Details required in section 61

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-section:


Schedule A of the Kalamaia Kabu(d)n application (herein referred to as the Kalamaia application)
describes the native title claim group (the persons on whose behalf the application is made) as
follows:

     The claim is brought on behalf of those persons who are specifically excluded from other claims which
     have previously passed the registration test, namely the following persons:

     Brian Champion and Mavis Champion and their biological descendants,
     George Angus Champion,
     James Champion,
     Clem “Kingie” Donaldson,
     Simon Champion,
     Tobias Werz,
     Darren Indich

It is clear that the claim group is composed of those persons who have been either generally or
specifically excluded from other claims that have passed the registration test. On the face of it I
have reason to believe that the group bringing the application are only part of a larger group who
hold common or group rights. Investigation of the evidence before me, as detailed below, has
revealed no contrary evidence. Rather, the evidence confirms my initial conclusion. As such I am
not satisfied that this requirement has been met.

Below is a detailed consideration of the evidence before me.

In Risk v Registrar, NNTR [2000] FCA 1589, O‟Loughlin J held that a delegate applying s190C(2)
of the registration test must consider whether the people identified as the native title claim group
are people who, according to their traditional laws and customs, hold the common or group rights
and interests comprising the particular native title that is claimed in their application (ie. are they a
properly constituted native title group?) His Honour held that, when it is apparent to the delegate
that the group bringing the application are only part of a larger group who hold common or group
rights, it is impossible to accept the application for registration.

As was said in the Risk decision:

     “By operation of subs 190C(2) the Registrar must be satisfied in relation to all the requirements
     contained in s61. It follows that, when applying the registration test, the Registrar must consider
     whether (on the basis of the application and other relevant information) the application has been made
     on behalf of a „native title claim group‟.

     The [Native Title] Act now ensure that applications can only be lodged on behalf of properly constituted
     groups – not individuals or small sub-groups. This approach is consistent with the principle that native

Reasons for Decision                                                                             page 5
                                         National Native Title Tribunal




     title is communally held… Subsection 61(1) imposes requirements not only in relation to the question
     of authorisation, but also in relation to the anterior question of whether the application has been made
     on behalf of a „native title claim group‟… An application which in not made on behalf of a „native title
     claim group‟ cannot validly proceed…” - per O‟Loughlin J at [30] – [31].

     “A native title claim group is not established or recognised merely because a group of people … call
     themselves a native title claim group. It is incumbent on the delegate to satisfy herself that the claimants
     truly constitute such a group...[T]he tasks of the delegate included the task of examining and deciding
     who, in accordance with traditional law and customs, comprised the native title claim group.” – per
     O‟Loughlin J at [60].

In my view, the group described in this application is not a properly constituted claim group. The
following factors, read together, inform that view:

The original Kalamaia application was brought on behalf of the Kalamaia Kabu(d)n People. As
will become apparent in the material discussed below, the Kalamaia Kabu(d)n form a large group
of people, numbering at least [NUMBER OMITTED] living members. As [NAME OMITTED]
stated in a letter, dated 14 March 2001 to the Registrar of the NNTT;

     The „Kapun Community‟ consists of a number of families. The number of Aboriginal people including
     children who are included within the „Kapun Community‟ numbers more than [NUMBER OMITTED]
     individuals and are direct descendants of the native title group who held native title rights and interests
     at the time of British sovereignty.

The Kalamaia application (WC 97/100) was then amended in the Federal Court on 19 December
2000, so that the claim group consisted of a married couple and their descendants, and six other
named individuals. It was later revealed, through file notes of conversations with the Kalamaia
applicants, that the descendants of the married couple consisted of [NUMBER OMITTED]
children and [NUMBER OMITTED] grandchildren. Therefore, the claimant group had decreased
in number from over [NUMBER OMITTED] individuals to approximately [NUMBER
OMITTED] individuals. I note that this is analogous to the matters before O‟Loughlin, J. Most of
these individuals appeared to be from one family, namely the [NAME OMITTED] family. The
applicants and claimants, as will be seen in the material discussed below, expressly recognised the
existence of other Kalamaia Kabu(d)n people, ie. individuals and extended family groups, who
were not represented on the amended Kalamaia Kabu(d)n application.

Affidavit of [NAME OMITTED] sworn 29 November 2000:

    Paragraph 2: I am a senior Kapun elder and one of the persons who, according to our
     traditional laws and customs, hold the common or group rights and interests comprising the
     native title claimed by the Gubran (Kapun) people. (Emphasis in original.)
    Paragraph 5: I confirm that Kapun was the name our people used to identify themselves. I also
     confirm that Kalamaia and TaKalaako is [sic.] the names of our language. I state that the
     Kapun people held communal native title over the central Goldfields including Kalgoorlie,
     Coolgardie, Kambalda and surrounding districts as well as Southern Cross and
     surrounding districts. (Emphasis added.)
    Paragraph 10: The deponent states that the old people from whom he takes native title “would
     never have identified by any other tribal name other than as Kapun‟s [sic].” (Emphasis
     added.)

The aforementioned statements amount to an admission (as in Risk) that the particular native title
claimed is held by a group called the Gubrun (Kapun) people or, at least, the Kalamaia Kapun
people – see below. The group description at Schedule A does not say that this is the group
bringing the application. Rather, an artificial means (exclusion from other claims) is the expressed
rule for group membership. This would not seem to be in accordance with law and custom as
required by s 61(1).

Reasons for Decision                                                                                 page 6
                                        National Native Title Tribunal




Overlapping Applications: Gubrun WC 95/27

According to paragraph 2 of [NAME OMITTED]‟s affidavit (sworn 29 November 2000),
„Gubrun‟ is apparently a variant spelling of „Kupun‟. Similarly, [NAME OMITTED] ‟s letter of 30
November 2000, which was filed with the amended Kalamaia application in the Federal Court on
01 December 2000, attests to variations in spelling and pronunciation which occur when
Aboriginal words/languages are written/spoken in a contemporary context. As [NAME
OMITTED] (ibid.) states:

     The language of my ancestors was a spoken, but not a written language. As with any language, slight
     differences of pronunciation occur between speakers. These differences of pronunciation may, and
     sometime do, find their way into the spelling of words when we attempt to write the language of our
     ancestors using a script designed for European languages.


On 01 May 1998, [NAME OMITTED] of the [ORGANISATION OMITTED], wrote to the
Registrar of the NNTT. This letter stated (emphasis added),

     The application [WC 97/100 Kalamaia Kabu(d)n] overlaps with WC 95/27 (Gubrun) which was
     referred to the Federal Court on 6 January 1998.

     In the State‟s view, WC 97/100 is frivolous and vexatious as the claimants are already represented in
     WC 95/27 as the “Champion, Sambo, Donaldson and Wilson (Gubrun) families” and therefore should
     not have been accepted.

According to a transcript from a Kalamaia Directions Hearing held on 13 December 1999, in
Kalgoorlie, [NAME OMITTED], who was representing the applicants (since he was not an
applicant to the Kalamaia Kabu(d)n claim at that time) stated in relation to the Kalamaia
application (emphasis added) that:

     We actually set out to point out a very important factor of the tribunal and the registrar accepting
     frivolous claims. Right? There were claims with this area that are family oriented, but they were
     accepted. We went and done the same thing. We said, “ Right, if this is the way to go, why not the
     young generation apply for the same land of their forefathers and ancestors?” So we did that. They did
     it…

The aforementioned statement by [NAME OMITTED] would seem to support [NAME
OMITTED]‟s suggestion. [NAME OMITTED] seems to be implying that the application was
lodged in an attempt to prove that the NNTT was accepting frivolous applications. He also infers
that the Kalamaia application is family oriented, seemingly implying that it has been brought by a
small sub-group of the Kalamaia Kabu(d)n people.

By applying for the „same land as their forefathers‟, [NAME OMITTED] appears to be referring
to the Gubrun application (WC 95/27), which was lodged by the fathers and/or uncles of the
Kalamaia applicants1. The external boundaries of the Kalamaia and Gubrun applications are
identical. (This factor was later confirmed by a geospatial analysis conducted by the NNTT.) In
fact, the Kalamaia applicants lodged an exact copy of the map which was lodged with the Gubrun
application, complete with the Gubrun labelling, when the Kalamaia application was lodged with
the NNTT in 1997.


1
 While the NNTT does not possess genealogical material, both the Gubrun (WC 95/27) and the Kalamaia
(WC 97/100) applicants and claimants have, on numerous occasions, both in person and on the telephone,
explained their descent and kinship relationships to Tribunal staff. Further, they have referred to the Gubrun
claim as the “fathers” claim, and Kalamaia as the “sons” claim. Descent and kinship affiliations are also
discussed in general terms in the affidavit material that has been provided to the NNTT.

Reasons for Decision                                                                              page 7
                                      National Native Title Tribunal




In the aforementioned transcript of Federal Court proceedings in relation to the Kalamaia
application, conducted on 13 December 1999, [NAME OMITTED] also stated:

     Kalamaia Kabd(d)n and Gubrun, right, were one and the same. Okay?… Gubrun was the tribe,
     Kalamaia was the language.

On 10 October 2000, [NAME OMITTED] telephoned the NNTT. In a file note of a conversation
with the Tribunal Case Manager for the Kalamaia (WC 97/100) and Gubrun (WC 95/27)
applications, the Case Manager noted that [NAME OMITTED] stated that he was still interested in
combining the Gubrun application with the Kalamaia application. [NAME OMITTED] expressed
concern over shared, common ancestors between the two applications and with other overlapping
applications in the Goldfields region. [NAME OMITTED] stated that they hoped to amend the
application in the near future.

Overlapping Applications: Amalgamation

The following documents on the NNTT files indicated the inclusion of the Kalamaia (WC 97/100)
application and/or the Gubrun (WC 95/27) application within the proposed Combined Central
West Goldfields application.

    A facsimile from the [NAME OF ORGANISATION OMITTED] to the Registrar of the
     NNTT, received 27 January 1999, indicated the inclusion of both the Kalamaia (WC97/100)
     and the Gubrun (WC 95/27) applications with the Central West Goldfields Combined
     application.
    The affidavit of [NAME OMITTED] of the [NAME OF ORGANISATION OMITTED],
     sworn on 29 January 1999, was later filed in the Federal Court „in support of notice of motion
     to amend, combine and consolidate Native title claims‟.
    „Notice of Motion to Amend and Combine Application‟, dated 29 January 1999 from
     [ORGANISATION OMITTED], clearly indicated the inclusion of both the Kalamaia (WAG
     6216/98) and the Gubrun (WAG 2/98) within the proposed Central West Goldfields
     application.
    A letter from the Federal Court of Australia to the Registrar of the NNTT, 02 March 1999,
     also indicated the inclusion of the Kalamaia application within the proposed Central West
     Goldfields application.
    A letter to [NAME OMITTED] of the NNTT from [ORGANISATION OMITTED], dated 02
     March 1999. This letter states, „The lead application for Cental West is attached to WAG 2 of
     1998 [ie. Gubrun]‟.
    Facsimile from the [NAME OF ORGANISATION OMITTED] to the NNTT in relation to the
     combined Central West Goldfields application, dated 22 March 1999, which states, „In terms
     of further information for the registration test, I now attach :- (a) affidavit of [NAME
     OMITTED], sworn 21 March 1999 in relation to Central West…‟
    A facsimile from the [NAME OF ORGANISATION OMITTED] to the NNTT, dated 10 April
     1999, which states, „[NAME OMITTED] has indicated his desire to submit an affidavit for the
     purposes of the registration test in relation to the proposed Central Goldfields Amalgamated
     claim, in addition to the affidavit provided in respect of the Central West Amalgamated claim.‟

Affidavit of [NAME OMITTED] affirmed on 21 March 1999:

    Paragraph 1: I am a member of the Native title claimant group of the central West Goldfields
     combined claim.

Affidavit of [NAME OMITTED] sworn on 14 April 1999:

    Paragraph 1: I am a member of the native title claimant group in the Central Goldfields
     combined claim.

Reasons for Decision                                                                       page 8
                                     National Native Title Tribunal




    Paragraph 2: I refer to the affidavit sworn by me in respect of the Central West combined claim
     and confirm what I have said in that affidavit.
    Paragraph 3: In addition, I wish to make this affidavit particularly in respect of the Central
     Goldfields combined claim.
    Paragraph 4: My traditional country also includes the area of the Central Goldfields combined
     claim.
    Paragraph 5: …The Central Goldfields claim area was and is a part of the land to which
     Kalamaia/Gubrun have traditional connection.

It would appear from the aforementioned material, including the two affidavits from [NAME
OMITTED], cited above, that the applicants and claimants of the Kalamaia (WC 97/100) and
Gubrun (WC 95/27) were initially in support of the proposed Central West and/or Central
Goldfields Combined application. However, this support was not apparent by the later half of
April 1999, as evidenced in NNTT file notes dated 19 April 1999. However, this suggestion is
contradicted by transcript evidence from the Federal Court, dated 16 June 1999, faxed to the
NNTT by [NAME OMITTED] on 01 March 2001. In relation to the proposed Central West
Goldfields combined application, the following comments were made:

    His Honour: Having raised that point, there are objections to combination that have been
     lodged, aren‟t there, in this matter?
    [NAME OMITTED, Solicitor acting for the NAME OF ORGANISATION OMITTED]: Yes.
     You may be referring to affidavits by [NAME OMITTED] and [NAME OMITTED].
    His Honour: Yes.
    [NAME OMITTED, SOLICITOR]: [NAME OMITTED] actually…
    His Honour: Are they excluded from the…
    [NAME OMITTED, SOLICITOR]: [NAME OMITTED] has had telephone discussion both
     with instructing solicitors and also as recently as this morning at the airport in Kalgoorlie he
     rang me and he indicated that he now wished to remain in the combination and so I am able to
     say to your Honour that he does not wish those affidavits to be considered to be his position.

Of concern here are the reasons given for [NAME OMITTED]‟s and [NAME OMITTED]‟s
eventual withdrawal of support for the Combined Central West Goldfields application and the
resulting exclusion of both the Gubrun (WC 95/27) and the Kalamaia (WC 97/100) applications
from the Central West Goldfields combined application (WC 99/29). These reasons can be found
in a letter from [NAME OMITTED] and [NAME OMITTED] to the Director of the [NAME OF
ORGANISATION OMITTED] dated 15 April 1999.

It is relevant to note that none of these reasons relate to the claim group of the Central West
Goldfields application; either how it had been constituted, described or the inclusion of the
applicants/claimants from the Kalamaia or Gubrun applications within it. There is no suggestion
that the applicants/claimants on the Kalamaia (WC 97/100) or Gubrun (WC 95/27) applications
form a unique, distinct, or in any way separate group to that which has been described on the
Central West Goldfields application.

Similarly, in a letter, dated 20 April 1999, to the [NAME OF ORGANISATION OMITTED] from
[NAME OMITTED], an applicant on the original and the amended Kalamaia application, [NAME
OMITTED] indicated the following:

     His desire to terminate the services of the [NAME OF ORGANISATION OMITTED] as the
      legal representative for the Kalamaia application.
     His dissatisfaction with the level or quality of service delivery by the [NAME OF
      ORGANISATION OMITTED].




Reasons for Decision                                                                     page 9
                                    National Native Title Tribunal




Affidavit of [NAME OMITTED] sworn 17 November 2000:

    Paragraph 4: The deponent supports the matters set out in regard to [NAME OMITTED]
     affidavit of 29 November 2000 as [NAME OMITTED] has been researching the “Kalamaia
     Kapun people”.
    Paragraph 12: My parents were part of a large community of Kapun people, who in my
     childhood lived in reserves …This community included the [NAMES OMITTED] families to
     name a few…
    Paragraph 22: …With other families connected to the claim area, I have participated in
     heritage projects that have mapped and recorded a number of our sacred sites to ensure their
     continued preservation and protection.

There is evidence held on NNTT files to suggest that the applicants are not the only surviving
members of the aforementioned Kapun/Gubrun families.

Affidavits of [NAME OMITTED] and [NAME OMITTED] sworn 19 January 2000:

    Paragraph 1: I submit this affidavit to be included as evidence in relation to the Kalamaia
     Kabu(d)n native title determination application number WAG 6216/98 (WC 97/100).
    Paragraph 2: I am a Senior Kapun elder and one of the person‟s who, according to our
     traditional laws and customs, hold the common or group rights and interests [emphasis in
     original] comprising the native title claimed by the Gubrun (Kapun) people.
    Paragraph 3: I confirm that my father is [NAME OMITTED].
    Paragraph 5: I confirm that Kapun was the name our people used to identify themselves. I also
     confirm that Kalamaia was the name of our language. I state that the Kapun people held
     communal native tile over the central Goldfields including Kalgoorlie, Coolgardie, Kambalda
     and surrounding districts as well as Southern Cross and surrounding districts.

In the aforementioned affidavits, [NAME OMITTED] and [NAME OMITTED] confirm that they
are senior Kapun elders and that the „Kapun people held communal native title over the central
Goldfields‟. However, by definition, they have not been included either as applicants or members
of the claim group on the amended Kalamaia application. Yet, they have provided affidavit
evidence in support of the amended Kalamaia application attesting to their relationship with the
applicant/claimant group. Indeed, by stating their relationship to [NAME OMITTED], they can be
considered, in spite of their attestation to the opposite at paragraph 8, to be a members of the
claimant group for the Central West Goldfields application (WC 99/20, WG 65/98). They did not
consider themselves and their biological descendants to be claimants on the Central West
Goldfields application, then why, at paragraph 11, was there a request for their removal from the
Central West Goldfields application? How can they and their biological descendants be removed
from something that they are not already a part of? Therefore, paragraph 8 and 11 of the
aforementioned affidavits are inconsistent.

The Affidavit of [NAME OMITTED] sworn 30 July 1996:

    Paragraph 4: My family, the [NAME OMITTED], are a very important and respected family in
     the Coolgardie area. My grandfather was law man for this country. I am one of the oldest
     surviving members of my family.
    Paragraph 14: …After my grandfather died people would ask my father. Now Aboriginal
     people who come here to use my country must ask me for permission.

The Affidavit of [NAME OMITTED] sworn 24 January 1999:

    Paragraph 1: I am an Aboriginal person, and an applicant and member of the goldfields
     Central West native title claimant group…

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                                        National Native Title Tribunal




Transcript of WF 97/4: Relevant information [NAME OMITTED]

    Paragraph 359: [NAME OMITTED] discusses her kinship relationships and states that
     [NAME OMITTED] is her brother.
    Paragraph 360: [NAME OMITTED] states that the [NAME OMITTED] included her brother,
     [NAME OMITTED] on the Gubrun application.

It is evident from the aforementioned affidavits that [NAME OMITTED] is a member of the
[NAME OMITTED] family and the sister of [NAME OMITTED]. The affidavit of 20 July 1996
also indicates that she is a senior elder and spokesperson for the area encompassed by the amended
Kalamaia application. From paragraph 14 of that affidavit, I infer that [NAME OMITTED] has the
authority to speak for country which is the subject of this application (ie, the Coolgardie area).
Yet, [NAME OMITTED] has not been included either as an applicant or a member of the claimant
group on the amended Kalamaia application.

Affidavit of [NAME OMITTED] sworn 27 April 1999:

    Paragraph 1: I am a member of the native title claimant group of the Central West Goldfields
     combined claim.
    Paragraph 2: My parents are [NAMES OMITTED]. My father, [NAMES OMITTED] was the
     eldest son of a Kalamaia speaking woman called [NAME OMITTED], who married [NAME
     OMITTED], a well-known tracker in the Southern Cross area. This statement is almost
     identical to the statement made by [NAME OMITTED], in his affidavit sworn 17 November
     2000, when he states, at paragraph 2: My parents are [NAMES OMITTED]. My father,
     [NAME OMITTED] is the eldest son of a Kapun woman, [NAME OMITTED] who married
     [NAME OMITTED], a well-known tracker in the Southern Cross area.
    Paragraph 15: Our family used to meet up and camp with other Gubrun families. Somehow we
     were all related. We used to live together and help each other. Some of these families were the
     [NAMES OMITTED] families…

After reviewing the aforementioned affidavit of [NAME OMITTED], it is evident that [NAME
OMITTED] and [NAME OMITTED] are sister and brother. [NAME OMITTED]‟s affidavit, is
very similar to the aforementioned affidavit of her brother, [NAME OMITTED]. [NAME
OMITTED] has not been included within the amended Kalamaia (WC 97/100) application either
as an applicant or as a claimant.

Letter from [NAME OMITTED] MP, dated 8 July 1999: re. [NAME OMITTED] & [NAME
OMITTED] (copied by [NAME OMITTED] to the Registrar on 8 July 1999:

In his letter to [NAME OMITTED] of the [NAME OF ORGANISATION OMITTED], [NAME
OMITTED] MP states the following:

     [NAME OMITTED] is the daughter of [NAME OMITTED]. On the basis of this and other connections,
     [NAME OMITTED] and [NAME OMITTED] were approached to form part of the Gubrun Claim and
     they signed papers for their inclusion in that claim. Since then they have been to a number of meetings
     of the Gubrun Group but it is unclear as to whether they have been formally included in the claim and
     had their names registered as applicants in the Native Title Tribunal and the Federal Court.

From the aforementioned letter, it is evident that [NAME OMITTED] and [NAME OMITTED]
identify as Gubrun people. Yet, they are uncertain of their inclusion within the Gubrun application.
However, it is evident that these two women, who identify as Gubrun and who can trace their
kinship affiliations with the [NAME OMITTED] family, have not been included either as either as
applicants or as claimants within the amended Kalamaia application (WC 97/100).


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                                         National Native Title Tribunal




In a submission, which was faxed to the NNTT on 09 March 2001 in support of the amended
Kalamaia application (WC 97/100), [NAME OMITTED] commented:

     The KK [Kalamaia Kabu(d)n] are a body of people sharing common ancestry and in common activities,
     who are bound together by multiple relationships both member of their group and with members of
     other groups, both Aboriginal and non-Aboriginal. As members of a traditional land – owning group,
     they have a spatial dimension. In these senses, they can be seen as a community of people, who are
     cognatically related to each other, who share common interests and who have a communal proprietary
     interest in a definite and definable area of land….

     The KK have a right, in accordance with traditional law and custom, to call themselves such a group.
     They contend that the other claimant groups who have already passed the Registration Test do not have
     such a right…

     The KK say that only they, as a properly constituted native title claimant group, continue to observe the
     role of traditional elders. Other groups who are making a claim over their traditional lands do not
     recognise the authority of the traditional elders and therefore do not fill the definition of a properly
     constituted native title claim group.

The aforementioned statements by [NAME OMITTED] provides further support for the position
that the Kalamaia Kabu(d)n are a „community of people‟, who profess to hold the common or
group rights and interests comprising the particular native title claimed. Whether this is or is not
the case is a matter for the Federal Court. However, [NAME OMITTED] comments support my
view that the amended Kalamaia application (WC 97/100) has been brought by and for a family or
small sub-group of the Kalamaia Kabu(d) people or „community‟. Other individuals and family
groups (who by their own and the applicants‟ admission) identify as
Gubrun/Kapun/Kalamaia/Kabu(d)n (as has been demonstrated above) have not been included
either as applicants and/or claimants within the amended Kalamaia application. Similarly, there is
no evidence to suggest that the applicants/claimants as they currently appear on the amended
Kalamaia application somehow form a different or unique group that can be or should be treated
separately from the other families or groups which identify as Gubrun/Kapun/Kalamaia/Kabu(d)n.

For the reasons set out above I am not satisfied that the persons in the native title claim group form
a properly constituted native title claim group as is required by s61(1).

Result: Requirements are not met

61(3) Name and address for service of applicant(s)
Reasons relating to this sub-section:


The names of the applicants are listed in Attachment 1 of the application. Five persons are listed.
These persons are: Mr. Brian Champion, Mr. Clem „Kingy‟ Donaldson, Mr. George A Champion,
Mr. James Champion and Mr. Darren Indich. This list does not differentiate between Mr. Brian
Champion Senior and Mr. Brian Champion Junior. However, from the affidavit material filed with
the application in the Federal Court, it is clear that it is Brian Champion Senior who is named as an
applicant in this matter.

The address for service is provided at Part B of the application.

I am satisfied there has been compliance with the procedural requirements of s61(3).

Result: Requirements are met


61(4) Names persons in native title claim group or otherwise describes the persons so that it can be
ascertained whether any particular person is one of those persons


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                                         National Native Title Tribunal




Reasons relating to this sub-section:


Schedule A describes the claimant group as being „brought on behalf of those persons who are
specifically excluded from other claims which have previously passed the registration test, namely
the following persons‟, a list of names is then provided. However, an exhaustive list of names of
the persons in the native title claim group has not been provided. Instead, Schedule A provides a
list that consists of what is apparently a married couple and their biological descendants along with
six other named individuals. It is not claimed that the biological descendants of the six named
individuals form part of the group.

Prima facie, the description of the group is based on exclusion from other claims rather than
inclusion as people who, according to their traditional laws and customs, hold the common or
group rights and interests comprising the particular native title that is claimed in their application.
Similarly, the statement that, „The claim is brought on behalf of those persons who are specifically
excluded from other claims which have previously passed the registration test‟ is very broad and
without qualification as to region, language or social/cultural/familial group membership.
Therefore, the persons in the claimant group are not described sufficiently clearly so that it can be
ascertained whether any particular person is in that group.

See also my reasons for decision in relation to s190B(3).

I am not satisfied there has been compliance with the procedural requirements of s61(4).

Result: Requirements are not met


61(5) Application is in the prescribed form2, lodged in the Federal Court, contain prescribed
                                                                  3
information, and accompanied by prescribed documents and fee
Reasons relating to this sub-section:


The application meets the requirements of s61(5)(a) in that it is in the form prescribed by
Regulation 5(1)(a) Native Title (Federal Court) Regulations 1998.

As required under s61(5)(b), the application was filed in the Federal Court.

The application meets the requirements of s61(5)(c) in that it contains all information as prescribed
in s62. I refer to my reasons for decision in relation to those sections.

As required by s61(5)(d), the application is accompanied by affidavits as prescribed by s62(1)(a).
I refer to my reasons for decision in relation to that section of the Act. The application is also
accompanied by a map as prescribed by s62(1)(b). I refer to my reasons for decision in relation to
s62(2)(b) of the Act.

I note that s190C(2) only requires me to consider details, other information, and documents
required by s61 and s62. I am not required to consider whether the application has been
accompanied by the payment of a prescribed fee to the Federal Court.

I am satisfied there has been compliance with the procedural requirements of s61(5).


2
  Note that in relation to pre 30.09.98 applications, the application does not need to be in the prescribed form
as required by the amended Act. Note also that pre 30.09.98 applications are deemed to have been filed in
the Federal Court.
3
 Note that “prescribed information” is that which is required by s.62 as set out in the text of this reasons
document under “Details required in section 62(1)”

Reasons for Decision                                                                                page 13
                                         National Native Title Tribunal




Result: Requirements are met



Details required in section 62(1)

62(1)(a) Affidavits address matters required by s62(1)(a)(i) – s62(1)(a)(v)
Reasons relating to this sub-section:


Affidavits have been received from all five applicants. All of the affidavits were sworn/affirmed
before a Justice of the Peace with the exception of one affidavit which was sworn/affirmed before
a Commissioner for Affidavits. All five of the aforementioned affidavits were sworn/affirmed on
29 November 2000.

The affidavits were sworn for the purpose of amending the application. Similarly, all of the
original applicants to this application have provided a sworn affidavit authorising the applicants
who appear on the amended application. These affidavits were sworn on 17 November 2000, 23
November 2000, and 24 November 2000.

The Federal Court granted leave to amend the application on 19 December 2000.

All of the affidavits address the matters required by s62(1)(a)(i) – s62(1)(a)(v).

I am satisfied there has been compliance with the procedural requirements of s62(1)(a).

Result: Requirements are met


62(1)(c) Details of physical connection (information not mandatory)
Reasons relating to this sub-section:


It is not a mandatory requirement that details of traditional physical connection be contained in the
application. Schedule M states that:

     Some of the traditional physical connections of the native title claimant group with the land have been
     listed in Schedules F and G above. In summary, the claimant group members are successors, in
     accordance with traditional Aboriginal law and custom, to the original Aboriginal owners of the land.
     They continue to live on the land and to use the land‟s resources in accordance with traditional law and
     custom. They continue to protect the land‟s ancient sacred sites and perform the ancient rites pertaining
     to them.

Result: Provided




Details required in section 62(2) by section 62(1)(b)

62(2)(a)(i) Information identifying the boundaries of the area covered
Reasons relating to this sub-section:


Schedule B of the application states:

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                                        National Native Title Tribunal




     The external boundary of the claim is described as traversing bwtween (sic. between) the co-ordinate
     points detailed in the technical description labelled „Attachment B‟.

A map which details the external boundary of the application has also been provided at
„Attachment C‟.

For the reasons set out in my reasons for decision in relation to s190B(2), I am satisfied that the
application complies with the procedural requirements of s62(2)(a)(i).

Result: Requirements are met

62(2)(a)(ii) Information identifying any areas within those boundaries which are not covered
Reasons relating to this sub-section:


Schedule B of the application contains a written description of the areas within the external
boundary of the area claimed which are not covered by the application.

For the reasons set out in my reasons for decision in relation to s190B(2), I am satisfied that the
information provided is sufficient to meet the procedural requirements of s62(2)(a)(ii).
Result: Requirements are met

62(2)(b) A map showing the external boundaries of the area covered by the application
Reasons relating to this sub-section:


Schedule C of the application refers to a map that is attached to the application at „Attachment C‟
that shows the external boundaries of the area covered by the application.

For the reasons set out in my reasons for decision in relation to s190B(2), I am satisfied that there
has been compliance of the procedural requirements of s62(2)(b).

Result: Requirements are met

62(2)(c) Details/results of searches carried out to determine the existence of any non-native title
rights and interests
Reasons relating to this sub-section:

Schedule D of the application states:

     No tenure searches have been conducted by the applicants. The State of W.A. has conducted a title
     search, the results of which have been forwarded to the National Native Title Tribunal. These results
     accompany this document, labelled „Attachment D‟.

Schedule L also provides information in regard to tenure and land use issues.

The requirements of s62(2)(c) can be read widely to include all searches conducted by any person
or body. However, I am of the view that I need only be informed of any searches conducted by the
applicants, and other searches of which the applicants are aware, in order to be satisfied that the
application complies with this condition. It would be unreasonably onerous to expect applicants to
have knowledge of, and obtain details about, all searches carried out by every other body or
person.

I am satisfied there has been compliance with the procedural requirements of s62(2)(c).


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                                        National Native Title Tribunal




Result: Requirements are met

62(2)(d) Description of native title rights and interests claimed
Reasons relating to this sub-section:


The section requires a description of the native title rights and interests claimed in relation to
particular land or waters, and any activities in the exercise of the rights and interests claimed.
Further, the section requires that the description must not consist merely of a statement to the
effect that the native title rights and interests are all native title rights and interests that may exist,
or have not been extinguished, at law.
A description of the native title rights and interests claimed is provided at Schedule E of the
application.

Schedule G contains a list of activities that members of the native title claim group have
continuously carried out on the land and waters in the claim area (see my reasons for decision in
relation to s62(2)(f)). These activities are activities in the exercise of one or more of the specific
rights and interests identified in Schedule E. The activities described are in general terms and are
not necessarily an exhaustive list of all activities carried out in the claim area. However, I am of
the view that the information supplied at Schedule G is sufficient to meet the requirements of this
section.

I am satisfied there has been compliance with the procedural requirements of s62(2)(d). See also
my reasons in relation to condition 190B(4).

Result: Requirements are met

62(2)(e)(i) Factual basis to support the assertion that the claim group has, and their predecessors
had, an association with the area
Reasons relating to this sub-section:


Schedule F of the application provides a general description of the factual basis in support of the
assertion made that the claim group has, and their predecessors had, an association with the area.

I am satisfied there has been compliance with the procedural requirements of s62(2)(e)(i).

Result: Requirements are met

62(2)(e)(ii) Factual basisto support the assertion that traditional laws and customs exist that give
rise to the claimed native title
Reasons relating to this sub-section:


Schedule F of the application provides a general description of the factual basis in support of the
assertion made that traditional laws and customs exist that give rise to the claimed native title.

I am satisfied there has been compliance with the procedural requirements of s62(2)(e)(ii).

Result: Requirements are met

62(2)(e)(iii) Factual basis to support the assertion that the claim group has continued to hold native
title in accordance with traditional laws and customs
Reasons relating to this sub-section:




Reasons for Decision                                                                           page 16
                                         National Native Title Tribunal




Schedule F of the application provides a general description of the factual in support of the
assertion made that the claim group has continued to hold native title in accordance with
traditional laws and customs.

I am satisfied there has been compliance with the procedural requirements of s62(2)(e)(iii).

The sufficiency of this factual basis is discussed in 190B(5).

Result: Requirements are met

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-section:


Schedule G of the application provides details of activities in relation to the land or waters that are
carried out by the native title claim group.

This section requires details of current activities. I do not regard this as requiring an exhaustive
description of activities. Rather, I am of the opinion that a general description that traditional law
business and customary activities are carried out, together with the (non-exhaustive) particulars of
these activities, constitutes sufficient detail.

The identified activities of the group in relation to the claim area are described in Schedule G.

I am satisfied there has been compliance with the procedural requirements of s62(2)(f).

Result: Requirements are met

62(2)(g) Details of any other applications 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-section:


Schedule H states:

     To the best of the knowledge of the native title claimant group their application does not cover any area
     covered by a previous native title determination.

     The list of applications that have been made for all or part of the claim area is attached as Attachment H.

The details provided in „Attachment H‟ are consistent with the spatial data of applications held by
the Tribunal‟s Geospatial Unit.

I am satisfied there has been compliance with the procedural requirements of s62(2)(g).

Result: Requirements are met




62(2)(h) Details of any S29 Notices (or notices given under a corresponding State/Territory law) in
relation to the area, and the applicant is aware of



Reasons for Decision                                                                               page 17
                                        National Native Title Tribunal




Reasons relating to this sub-section:


This condition requires the application to contain the details of any notices given under s29 (or
State law equivalent) of which the applicants are aware. To comply with this condition the
applicants are required to give details of those notices of which they are aware.

Schedule I provides details of thirteen notices the applicants are aware of in relation to the claim
area. These details were prepared by the Future Act Unit of the Tribunal on 29 November 2000
and provided to the applicants.

I am satisfied there has been compliance with the procedural requirements of s62(2)(h).

Result: Requirements are met


Reasons for the Decision

I refer to the individual reasons for decision in relation to sections 61 and 62, set out above. For
the reasons outlined, I find that the procedural requirements of sections 61 and 62 have not been
met. Accordingly, the application does not meet the requirements of s190C(2).

Aggregate Result: Requirements are not met




Reasons for Decision                                                                      page 18
                                            National Native Title Tribunal




                       Common claimants in overlapping claims:
                       The Registrar must be satisfied that no person included in the native title claim
 190C3                 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

In order for the application to comply with s190C(3), I must be satisfied that no person included in
the application was a member of the native title claim group for any previous application in the
circumstances set out in s190C(3).

The operation of s190C(3) was considered in Western Australia v Strickland [2000] FCA 652. It
was held that an application lodged prior to 30 September 1998 is to be regarded as having been
“made” on the date it was lodged with the National Native Title Tribunal. I note that the Kalamaia
application was lodged with the National Native Title Tribunal on 25 November 1997 and this is
the relevant date when considering the application for the purposes of s190C(3)(b).

A search of the Register of Native Title Claims as at the date of this decision reveals that there are
seven applications covering all or part of the area covered by the current application. These
applications are as listed below:

Application Name                         NNTT Number                    Date lodged/filed
  Gubrun                                WC 95/27                       27/07/1995
  Widji                                 WC 98/27                       12/06/1998
  Wongatha                              WC 99/1                        06/01/1999
  Ngadju                                WC 99/2                        24/12/1998
  Maduwongga                            WC 99/9                        28/01/1999
  Central West Goldfields               WC 99/29                       26/02/1999
  Central East Goldfields               WC 99/30                       26/02/1999

The Gubrun application was made earlier that the Kalamaia application, and is not relevant here
because it was removed from the Register as a result of consideration of s190A. The Widji
application was made after the Kalamaia application, and is therefore not relevant. Prima facie,
there are no claimants common to Kalamaia and either Wongatha, Maduwongga or Central East
Goldfields. I base this conclusion on advise from the relevant Case Manager.

However, of relevance here are the Central West Goldfields combined application WC 99/29 and
the Ngadju combined application WC 99/2. The Central West Goldfields application is a
combination of four applications. These applications are as follows:

Precombination Application               NNTT Number                    Date lodged/filed
   Kabul                                WC 97/76                       10/09/1997
   Mulyerrie People                     WC 97/99                       24/11/1997
   Kalaako                              WC 97/25                       26/03/1997
   Mingarwee                            WC 96/10                       02/02/1996



Reasons for Decision                                                                             page 19
                                     National Native Title Tribunal




The Ngadju combined application consists of the following two applications:

Precombination Application       NNTT Number                     Date lodged/filed
   Ngadju People                WC 95/14                        20/06/1995
   Ngadju                       WC 95/17                        30/06/1995

All of the pre-combination applications included in the Central West Goldfields application (WC
99/29) and the Ngadju application (WC 99/2) predate the lodgement/filing date of the Kalamaia
application. It was the view of the Full Court in Western Australia v Strickland [2000] FCA 652
that, if overlapping applications are found to be earlier in time, then the Delegate must consider if
that entry in relation to the earlier application is still on the Register and has been tested under
s190A at the time that the Registrar applied the registration test to the current application. In
relation to the Central West combined application and the Ngadju combined application, all of the
precombination applications predate the Kalamaia application, they remained on the Register of
native title applications, and have been tested in their combined form under s190A of the Native
Title Act 1993 (Cth) and were not removed as a result of consideration under s190A.

In relation to the Mulyerrie application WC 97/99, the applicants are listed as Bob Donaldson,
Clem Donaldson, Dick Donaldson (Ngoornie) direct descendants, Henry Donaldson, Roma
Bendessi, and Trevor Donaldson. On 30/07/1999, [NAME OMITTED] signed an authorisation
endorsing the combination of the four applications listed above into the Central West Goldfields
combined application. [NAME OMITTED], while not an applicant on the Central West Goldfields
application, has not only consented to the combining of the precombination but also is currently a
member of the Central West Goldfields claimant group.

The name [NAME OMITTED] also appears on the Gubrun application (WC 95/27) and the
amended Kalamaia (WC97/100) application. In his affidavit, sworn on 02/02/2001, [NAME
OMITTED], at point 5 confirms that he is an applicant on the Gubrun and the amended Kalamaia
application

In his affidavit, sworn on 29 November 2000, [NAME OMITTED] states at point 25 that he is not
part of the combined Central West application. In his affidavit, sworn on 02/02/2001, [NAME
OMITTED], at point 6, states that, „I also confirm that I was not and never have been an applicant
on the Mulyerrie (WC 97/99) application.‟

In Attachment A to the amended Kalamaia application reads, „[NAME OMITTED] of Coolgardie
want my name withdrawn from the Central West Claim‟. This Attachment has been signed by
[NAME OMITTED] and is dated 02/06/1999. The wording of this Attachment seems to imply that
[NAME OMITTED] was and currently still is a member of the Central West Goldfields
application but wants his name removed from that application.

In his affidavit, sworn on 02/02/2001, [NAME OMITTED], at point 7, states that, „The applicant
named [NAME OMITTED] on the Mulyerrie (WC 97/99) application to which the NNTT‟s letters
refers is my nephew. He is my brother‟s son.‟ Attachment 1 of the amended Kalamaia application
provides a list of applicants in which the name [NAME OMITTED] is provided. A Health Care
Card submitted with the Mulyerrie application contains the name [NAME OMITTED].

I accept the aforementioned sworn affidavit material to the effect that the [NAME OMITTED] who
appears on the Mulyerrie application is in fact a different person to the [NAME OMITTED] who
appears as an applicant on the Gubrun and amended Kalamaia applications. The Mulyerrie
applicant, it would seem, is [NAME OMITTED] who is the nephew to the older [NAME
OMITTED] who is an applicant to the Gubrun and amended Kalamaia applications. To avoid
confusion, the older [NAME OMITTED] who appears on the Gubrun and amended Kalamaia
applications will be referred to as [NAME OMITTED].

Reasons for Decision                                                                     page 20
                                         National Native Title Tribunal




However, the claim group description of the Central West Combined application (WC 99/29)
states (emphasis added):

     The Central West Goldfields People, being those persons (including the applicants) who are the
     biological descendants of
     Nellie Champion => Ted Champion and Jack Champion
     Nyuumanging aka Nyuumanii aka King Billy
     Mary Ann, wife of King Billy
     Tommy Roundhead
     Johnny Wilson
     Alice Wilson
     Broadarrow Tommy
     Lucy Sambo
     Mary Knowle
     Charlie Knowle
     Aneida => Thomas Cooper

     But does not include:
     Brian Champion and Mavis Champion and their biological descendants, and
     George Angus Champion
     James Champion
     Simon Champion
     Tobias Werz
     Darren Indich
     Leonne Dale Velickovic

     Note: x => y means y is the offspring of x.

In his affidavit, sworn 29 November 2000, and filed in the Federal Court with the amended
Kalamaia application, [NAME OMITTED], at point 3, states (in part), „I am the oldest living
descendant of [NAME OMITTED] and [NAME OMITTED].‟ As can be seen above, [NAME
OMITTED] and her descendants are included as claimants on the Central West Goldfields
application (WC 99/29). At a meeting with [NAME OMITTED] (Kalamaia claimant), [NAME
OMITTED] (Kalamaia claimant), [NAME OMITTED] (Kalamaia claimant), and [NAME
OMITTED] (Kalamaia claimant) conducted with staff at the NNTT on 25/01/2001, the group
confirmed that the [NAME OMITTED] who appears as an ancestor on the Central West
application (WC 99/29) is in fact the same person as the [NAME OMITTED] referred to by
[NAME OMITTED] in his aforementioned affidavit. As [NAME OMITTED] claims descent from
[NAME OMITTED] and this is the same person who appears as an ancestor on the Central West
application, [NAME OMITTED] by definition is a member of the Central West claimant group.

As indicated above, [NAME OMITTED] has signed sworn affidavits attesting to the fact that he is
not a member of the Central West Goldfields application. However, the material before me does
suggest that [NAME OMITTED] is, by definition and by his own statement of kinship affiliation
and descent, a member of the claimant group of the Central West Goldfields application (WC
99/29). I accept that [NAME OMITTED] does not wish to be a member of this application,
however he has failed to do so to date. I note that [NAME OMITTED] , who is also an applicant
on the Gubrun and the amended Kalamaia applications, had himself and his wife [NAME
OMITTED] specifically excluded from the claimant group of the Central West Goldfields
application. However, [NAME OMITTED] did not have himself specifically excluded from the
claimant group of the Central West Goldfields application.

I conclude that [NAME OMITTED] is a member of the claimant group for both Kalamaia and the
Central West Goldfields. The latter application is a “previous application” which overlaps the
Kalamaia application and is currently entered on the Register of Native Title Claims. That entry


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                                    National Native Title Tribunal




was made, or not removed, as a result of consideration of the Central West Goldfields application
under s190A.

Affidavit of [NAME OMITTED] sworn 17 November 2000 (emphasis added)

    Paragraph 2: My parents are [NAME OMITTED] and [NAME OMITTED]
    Paragraph 7: …Balladonia is in part of the country that belongs to a neighbouring
     southeastern group known as the Ngadju people.
    Paragraph 8: My father married [NAME OMITTED], who came from this group of
     people…My older sister [NAME OMITTED] was born on the coastal plain at a place called
     Emu Point, which is in my mother‟s traditional country.
    Paragraph 9: My mother [NAME OMITTED] is the oldest child of [NAMES OMITTED]. My
     mother had a large number of younger siblings.

In her aforementioned affidavit, [NAME OMITTED] outlines her biological descent from named
ancestors. In particular, the affidavit material quoted above specifically details [NAME
OMITTED]‟s maternal descent. Affidavit material received in relation to the Ngadju applications,
WC99/2 and WC97/105, from [NAME OMITTED], sworn 25 January 1999, and [NAME
OMITTED], sworn 20 April 1999, demonstrate [NAME OMITTED]‟s maternal descent from the
same people.

[NAME OMITTED] and [NAME OMITTED] depose to their parents being [NAME OMITTED]
and [NAME OMITTED]. According to [NAME OMITTED]‟s affidavit, [NAME OMITTED] and
[NAME OMITTED] were “married at [PLACE NAME OMITTED] on 13 May 1917”. Messrs
[NAME OMITTED] also depose to [NAME OMITTED] being the son of [NAME OMITTED], a
full descent Ngadju woman. The aforementioned affidavit material establishes a biological
relationship between [NAME OMITTED] and Messrs [NAME OMITTED], with Messrs [NAME
OMITTED] being the younger siblings of [NAME OMITTED]‟s mother, [NAME OMITTED].

As previously indicated, WC 99/2 (Ngadju) is a combination of applications WC 95/14 and WC
95/17 which were lodged with the Tribunal on 20 June 1995 and 30 June 1995 respectively. The
combined Ngadju application (WC 99/2) was accepted for registration, pursuant to s190A of the
Act, on 28 September 2000.

The Ngadju native title claim group is described as all those persons who are the biological
descendants of named ancestors. I note that one of these named ancestors is [NAME OMITTED],
being the mother of [NAME OMITTED]. Other persons are also included in the claim group
through adoption, with that process defined in the application. No persons have been specifically
excluded from the Ngadju (WC 99/2) claim group.

By definition, therefore, [NAME OMITTED] is a member of the Ngadju native title claim group.
The Ngadju application is a “previous application” which overlaps the Kalamaia application and is
currently entered on the Register of Native Title Claims. That entry was made, or not removed, as
a result of consideration of the Ngadju application under s190A.

Therefore, I am not satisfied that the application complies with the requirements of s190C3.

Result: Requirements are not met




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                                               National Native Title Tribunal




                       Certification and authorisation:

 190C4(a)              The Registrar must be satisfied that either of the following is the case:
                       (a)    the application has been certified under Part II by each representative
 and                         Aboriginal/Torres Strait Islander body that could certify the application in
                             performing its functions under that Part; or
 190C4(b)                        Note: An application can be certified under section 203BE, or may have been
                                       certified under the former paragraph 202(4)(d).
                       (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.


Reasons for the Decision

This condition requires me to be satisfied that the application is certified pursuant to s190C(4)(a)
or authorised pursuant to s190C(4)(b) of the Act. An application complies with s190C(4)(a) of the
Act if it is certified under s203BE or was certified under repealed s202(4)(d). This application has
not been certified pursuant to s190C(4)(a) and therefore will be considered under 190C(4)(b).

I am satisfied that the applicants are members of the claim group as defined in the application.
However, as noted above, it is apparent that the group bringing the application are part of a larger
group who hold common or group rights (see Reasons for Decision under s190C(2) and s61(1)).
Therefore the group bringing the application is not a properly constituted claim group, and it
follows that I can not be satisfied that authorisation has been given in the manner required under
s190B(4)(b), ie. by all the other persons in the native title claim group.

An application can not be accepted for registration by a group of people, who were, self evidently,
part only of a larger group when there was no evidence of authorisation by, or identification of, the
other members of the larger group. I note that some individuals and families, but not all, who
claim membership to the larger group have been identified. However, these individuals have not
been included within the claim group of the amended Kalamaia application (see footnote 1).

In Risk, His Honour noted that the applicant does not have to be individually authorised by each
member of the claimant group. It will be enough that the applicant has been recognised under the
traditional laws and customs of the claimant group: citing Wilcox J in Moran v Minister for Land
and Water Conservation for the State of New South Wales [1999] FCA 1637. Schedule R of the
amended Kalamaia application states (in part):

     The traditional custom of decision-making amongst the group follows generally normal Aboriginal
     practice. The senior member of each of the families or sub-families within the group speaks on behalf of
     his or her family or sub-family. This custom has been followed for at least three generations.

     These senior members meet to discuss issues affecting the group and communicate decisions reached to
     each of their respective families or sub-families. The junior members have a right to input, but not to
     gainsay decisions reached by their elders.

In addition to the above, Attachment R of the amended Kalamaia application states:

     In the case of this native title application, a meeting of the claimant group was held on 3 November
     2000 at Coolgardie Park. All adult members of the claimant group attended. At that meeting a decision
     was reached by the group that the five applicants listed in Part 1 above would represent the group in this
     amended application.

     The above decision was unanimous.



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                                    National Native Title Tribunal




It should be noted that the applicants on the original Kalamaia application were all young men.
Indeed, Kalamaia (WC 97/100) was the „sons‟, ie. younger or junior mens‟ application while
Gubrun (WC95/27) was the „fathers‟, ie. older or senior mens‟ application (see footnote 1 above
and associated text). It was not until the Kalamaia application was amended in the Federal Court
on 19 December 2000, that [NAME OMITTED] and [NAME OMITTED] were named as
applicants. However, both [NAME OMITTED] and [NAME OMITTED] remained as applicants
on the Gubrun claim along with other elder Gubrun men. There is no evidence that the claimants
in Gubrun have authorised the making of the Kalamaia application. This is of particular
importance given that the Kalamaia applicants acknowledge that some of the Gubrun claimants are
senior Gubrun men. Further, according to the authorisation process described in Schedule R and
Attachment R of the amended Kalamaia application, „senior members meet to discuss issues
affecting the group and communicate decisions reached to each of their respective families or sub-
families.‟

I also note that [NAME OMITTED], [NAME OMITTED] and [NAME OMITTED] are
acknowledged as senior women, in that the claimants rely upon their affidavit evidence to that
effect, but there is no indication as to whether they provided authorisation or were required to
authorise the application.

For the reasons above I am not satisfied that the application complies with s190C(4).

Result: Requirements are not met




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                                             National Native Title Tribunal




                       Evidence of authorisation:
                       If the application has not been certified as mentioned in paragraph (4)(a), the
 190C5                 Registrar cannot be satisfied that the condition in subsection (4) has been satisfied
                       unless the application:
                       (a)    Includes a statement to the effect that the requirement set out in paragraph
                             (4)(b) has been met; and
                       (b)    briefly sets out the grounds on which the Registrar should consider that it has
                             been met.


Reasons for the Decision

The authorisation process has been outlined in Schedule R and Attachment R of the amended
Kalamaia application. Schedule R of the amended Kalamaia application states (in part):

     The traditional custom of decision-making amongst the group follows generally normal Aboriginal
     practice. The senior member of each of the families or sub-families within the group speaks on behalf of
     his or her family or sub-family. This custom has been followed for at least three generations.

     These senior members meet to discuss issues affecting the group and communicate decisions reached to
     each of their respective families or sub-families. The junior members have a right to input, but not to
     gainsay decisions reached by their elders.

In addition to the above, Attachment R of the amended Kalamaia application states:

     In the case of this native title application, a meeting of the claimant group was held on 3 November
     2000 at Coolgardie Park. All adult members of the claimant group attended. At that meeting a decision
     was reached by the group that the five applicants listed in Part 1 above would represent the group in this
     amended application.

     The above decision was unanimous.

For the reasons given in relation to s190C(4)(b) I cannot be satisfied that conditions in s190C(5)
have been satisfied, despite the fact that the application includes a statement in relation to
authorisation and briefly sets out the grounds on which I should be satisfied that the requirements
of s190C(5) have been met.

Result: Requirements are not met




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                                            National Native Title Tribunal




B. Merits Conditions
                       Description of the areas claimed:
                       The Registrar must be satisfied that the information and map contained in the
 190B2                 application as required by paragraphs 62(2)(a) and (b) are sufficient for it to be said
                       with reasonable certainty whether native title rights and interests are claimed in
                       relation to particular land or waters.


Reasons for the Decision

In order for the application to meet the requirements of this section I must be satisfied that the
information and map contained in the application, as required by s62(2)(a) and s62(2)(b), are
sufficient for it to be said with reasonable certainty whether native title rights and interests are
claimed in relation to particular land or waters.

In applying this condition I have relied upon the information provided at Schedule B and
Attachment B and the map referred to in Schedule C (included as Attachment C) of the
application.

External Boundaries
At Attachment B, the applicants have provided a written technical description of the external
boundaries of the application. The Tribunal‟s Geospatial Unit prepared this technical description
for the applicants. I am satisfied that the information provided enables the boundaries of the area
covered by the application to be identified, and therefore, that the requirements of s62(2)(a)(i) are
met.

Attachment C is a map compiled by the Land Claims Mapping Unit (LCMU) of the State
Government‟s Department of Land Administration (DOLA). While the copy of the map, which
was filed in the Federal Court with the application, is difficult to read, the Tribunal‟s Geospatial
Unit has confirmed that there have been no changes to the external boundary of the application.
The map displays sufficient co-ordinates to enable the position of sites or localities within them to
be identified. The map shows a scale allowing distances and areas to be ascertained and identifies
unallocated Crown land, and reserves. The line indicating the external boundary is finely marked
and easy to follow. A locality diagram indicates generally the position of the application within
the state of Western Australia and forms part of the map provided.

The Tribunal‟s Geospatial Unit has confirmed that the map depicts the external boundary as
described in Attachment B. I am therefore satisfied that the map submitted with the application
meets the requirements of s62(2)(b).

Internal boundaries
The internal boundaries, described at Schedule B of the application, exclude a variety of tenure
classes from the claim area in written form. The written description of the internal boundaries is as
follows:

Internal Boundaries:
1. The Applicants exclude from the claim any areas covered by valid acts which occurred on or before 23
     December 1996 comprising such of the following as are included as extinguishing acts within the
     Native Title Act 1993, as amended, or Titles (Validation) and Native Title (Effect of Past Acts) Act
     1995 (WA), as amended, at the time of the Registrar's consideration:
          Category A past acts, as defined in NTA s228 and s229;
          Category A intermediate period acts as defined in NTA s232A and s232B.

2.   The applicants exclude from the claim any areas in relation to which a previous exclusive possession
     act, as defined in section 23B of the NTA, was done in relation to an area, and, either the act was an act

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                                       National Native Title Tribunal




     attributable to the Commonwealth, or the act was attributable to the State of Western Australia and a
     law of that State has made provision as mentioned in section 23E NTA 1993 in relation to the act.

3.   The Applicants exclude from the claim area any areas in relation to which native title rights and
     interests have otherwise been extinguished, including area subject to:
      (a)       an act authorised by legislation which demonstrates the exercise of permanent adverse
                dominion in relation to native title;
      (b)       actual use made by the holder of a tenure other than native title which is permanently
                inconsistent with the continued existence of native title.
      To avoid any uncertainty, the applicants exclude from the claim area the tenures set out in Schedule
B1.
B1.1 An unqualified grant of an estate in fee simple.
B1.2 A lease which is currently in force, in respect of an area not exceeding 5,000 square metres; upon
which a dwelling house, residence, building or work is constructed; and which comprises:
      (1)      a lease of a Worker‟s Dwelling under the Worker‟s Homes Act 1911-1928;
      (2)      a 999 year lease under the Land Act 1898;
      (3)      a lease of a Town Lot or Suburban Lot pursuant to the Land Act 19933 (WA), s117; or
      (4)      a special lease under s117 of the Land Act 1933 (WA).
B1.3 A Conditional Purchase lease currently in force in the Agricultural area of the South West Division
under clauses 46 and 47 of the Land Regulations 1887, which included a condition that the lessee reside on
the area of the leased and upon which a residence has been constructed.
B1.4 A Conditional Purchase Lease of cultivable land currently in force under Part V, Division (1) of the
Land Act 1933 (WA) in respect of which habitual residence by the lessee is a statutory condition in
accordance with the Division and upon which a residence has been constructed.
B1.5 A Perpetual Lease currently in force under the War Service Land Settlement Scheme Act 1954.
B1.6 A permanent public work.
B1.7 An existing public road or street used by the public.

4. Paragraphs (1) to (3) above are subject to such of the provisions of sections 47, 47A and 47B of the
NTA as apply to any part of the area contained within this application.

Section 62(2)(a)(ii) requires that I must be satisfied that this information is sufficient for it to be
said with reasonable certainty whether native title rights and interests are claimed in relation to
particular land or waters.

The applicants have not identified, parcel by parcel, the areas of land and waters that are excluded
from the claim area. In my view, they are not required to do so in order to satisfy the requirements
of s62(2)(a)(ii) and s190B(2). The internal boundaries are described by way of identifying classes
of land tenure that are not covered by the application. Such class exclusions amount to
information that enables the internal boundaries of the application area to be adequately identified.
This may require research by the State of Western Australia and other custodians, but nevertheless
it is reasonable to expect that the task could be done on the basis of the information provided by
the applicants.

The wording of paragraph (3) makes it plain that the applicants exclude from the claim area any
areas in relation to which native title rights and interests have otherwise been extinguished. The
description of areas excluded from the claim area is expressed as “including” the areas subject to
what is set out in sub-paragraphs (3)(a) and (3)(b). As such the tenures identified in sub-
paragraphs (3)(a) and (3)(b) are clearly not intended to be exhaustive even though specific tenures
are then listed. This follows clauses excluding areas subject to Category A and B past acts and
PEPAs. However, following the findings in WA v Ward [2000] 170 ALR 159; 99 FCR 316, there
is no specific mention of areas where mining leases under the 1978 mining legislation and general
purpose leases have been granted or where a pastoral lease was enclosed and/or improved (as the
case may be). Although not expressly stated it follows that the applicants exclude, for example,
any areas covered by mining or general purpose leases where such leases extinguish native title.



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                                      National Native Title Tribunal




I find that the information enables the boundaries of any areas within the external boundaries of
the application that are not covered by the application to be identified.

I am therefore satisfied that the exclusion clauses set out in the paragraphs above are sufficient to
meet the requirements of s62(2)(a)(ii).

Conclusion
I find that the information and map submitted with the application meet the requirements of s62 (a)
and (b). I am satisfied that the information and the map provided by the applicants are sufficient
for it to be said with reasonable certainty that native title rights and interests are claimed in relation
to the areas specified. The criteria set out in s190B(2) are met.

I am satisfied that the application complies with s190B(2).

Result: Requirements are met




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                                              National Native Title Tribunal




                       Identification of the native title claim group:
                       The Registrar must be satisfied that:
 190B3
                       (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 the requirements of this condition, the description of the claim group must be sufficiently
clear so that it can be said with reasonable certainty whether any particular person is a member of
the native title claim group.

Schedule A describes the native title claim group (the persons on whose behalf the application is
made) as follows:

     The claim is brought on behalf of those persons who are specifically excluded from other claims which
     have previously passed the registration test, namely the following persons:

     Brian Champion and Mavis Champion and their biological descendants,
     George Angus Champion
     James Champion
     Clem “Kingie” Donaldson
     Simon Champion,
     Tobias Werz,
     Darren Indich

As Schedule A relies on a description rather than naming the persons in the claim group, the
application does not satisfy s190B(3)(a). Consequently, the applicants must rely on satisfying
s190B(3)(b) and therefore the application must otherwise describe the persons in the native title
claim group sufficiently clearly so that it can be ascertained whether any particular person is one of
those persons.

The aforementioned claim group description is unclear and subject to various interpretations. For
example, does the first part of the claim group description, ie. the statement that the „claim is
brought on behalf of those persons who are specifically excluded from other claims which have
previously passed the registration test‟ refer specifically to the individuals who are named in
Schedule A? Or, should the claim group description be read as two distinct parts? For example, the
first part which reads, „The claim is brought on behalf of those persons who are specifically
excluded from other claims which have previously passed the registration test‟ and the second part
which consists of a married couple and their descendants and 6 other named individuals.

If the first interpretation is relied upon and the statement that, „The claim is brought on behalf of
those persons who are specifically excluded from other claims which have previously passed the
registration test‟ is meant to specifically refer to only those individuals and/or their descendants
whose names appear on the application, then the validity of this statement and the number of
individuals included within the claim group comes into question. For example, [NAME
OMITTED] is not specifically excluded from the claim group description of the Central West
Goldfields application (WC 99/20). [NAME OMITTED] is not specifically excluded from the
claim group description of the Ngadju application (WC 99/2). From his affidavit, dated 29
November 2000, in which at paragraph 3 he discusses his descent, by definition [NAME
OMITTED] is included within the claim group of the Central West Goldfields application (WC
99/29). As previously indicated (see s190C(3)), [NAME OMITTED] by definition is included
within the claimant group of the Ngadju application (WC 99/2). This interpretation would also

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                                      National Native Title Tribunal




result in the claimant group of the amended Kalamaia application consisting of a total of
approximately [NUMBER OMITTED] individuals, as [NAME OMITTED] stated that he has
[NUMBER OMITTED] children, [NUMBER OMITTED] grandchildren, and [NUMBER
OMITTED] great grandchildren. Other individuals who identify as Kapun/Gubrun, such as
[NAME OMITTED] and [NAME OMITTED] (as per their affidavits of 19/01/2001), have not
been included within the claim group of the amended Kalamaia application.

If the second interpretation is relied upon then the application could include any person from any
region in Australia who are specifically excluded from other claims which have previously passed
the registration test, as well as those individuals and/or their descendants who are specifically
listed on the amended Kalamaia application. As this description is not limited to any region, is it
the applicants‟ intension to include within the Kalamaia claim group individuals from other areas
or States in Australia who might satisfy this condition? This interpretation is open to speculation.

I have considered how I could reasonably interpret the description. Namely, that it refers to other
claims overlapping the Kalamaia application, and people who were excluded from those
overlapping claims that were registered at the time of my decision. I also considered the primacy
of the named persons and their descendants.

However, as the native title claim group as outlined in Schedule A is subject to various
interpretations, it can not be said that the persons in that group are described sufficiently clearly so
that it can be ascertained whether any particular person is in that group. Therefore, I find that the
description does not meet the requirements of s190B(3)(b).

I am not satisfied that the application complies with s190B(3).

Result: Requirements are not met




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                                              National Native Title Tribunal




                       Identification of the native title rights and interests:

 190B4                 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 condition requires me to be satisfied that the native title rights and interests claimed can be
readily identified. To meet the requirements of s190B(4), I need only be satisfied that at least one
of the rights and interests sought is sufficiently described for it to be readily identified.

Schedule E of the application contains a description of native title rights and interests claimed as
follows:

     The native title rights and interests of the applicants in relation to the area covered by the application
     include, subject to and in accordance with their laws and customs:

     1.     the right of possession of the land, waters, and the resources and attributes of the land and waters
            (“resources”), along with any other native title holders (if any) and to the exclusion of all other;
            and
     2.     the right to occupation, use and enjoyment of the land, waters and resources, along with any other
            native title holder (if any) and to the exclusion of all others; and
     3.     further or in the alternative, the right to-
     a)     possession of the land, waters and resources;
     b)     occupation of the land, waters and resources;
     c)     use and enjoyment of the land, waters and resources;
     d)     own and control information comprising and concerning the traditional laws and customs of the
            Gubrun People in relation to the land, waters and resources;
     e)     conduct ceremonies on the land and in relation to the land, waters and resources;
     f)     live on and erect residences and other infrastructure on the land;
     g)     move freely about the land and waters;
     h)     hunt and fish on and from the land and waters and otherwise collect food from the land and
            waters;
     i)     take from the land and use, the resources of the land, including the plants and animals of the land
            and all other components and attributes of the land useful to people;
     j)     take from the waters and use, the resources of the waters, including the plants and animals of the
            waters, the water and all other components and attributes of the waters useful to people;
     k)     dig for, take from the land and waters and use minerals and ores, and extractive minerals an
            quarry materials such as flints, clays, soil, sand, gravel, rock, and all like resources;
     l)     manufacturer [sic] materials, tools and weapons from the products of the land, waters and
            resources;
     m)     dispose of products of the land, waters and resources, and manufactured products, by trade of
            exchange;
     n)     manage, conserve, and care for the land, waters and resources;
     o)     grant or refuse permission to any other person to do some or all of (a)-(n) either at all or subject
            to terms and conditions;
     p)     inherit native title rights and interests;
     q)     bestow and acquire native title rights and interests; and
     r)     resolve as amongst themselves any disputes concerning land, waters and resources.

     The above native title rights and interests are subject to Schedules P, Q, R in Attachment E.

Schedules P states:

     The application does not refer to any offshore place.



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                                          National Native Title Tribunal




Schedule Q states:

     To the extent that any minerals, petroleum or gas within the area of the claim are wholly owned by the
     Crown in right of the Commonwealth or the State of Western Australia, they are not claimed by the
     applicants.

Attachment E states:

     P)     the applicants do not make a claim to native title rights and interests which confer possession,
            occupation use and enjoyment to the exclusion of all others in respect of any area in relation to
            which a previous non-exclusive possession act, as defined in section 23f of the NTA, was done in
            relation to an area, and either the act was an act attributable to the State of Western Australia and
            law of that State has made provision as mentioned in section 23 in relation to the act.

     Q)     Paragraph (P) above is subject to such of the provisions of section 47, 47A, and 48B [sic. 47B] of
            the act as apply to any part of the area contained with this application, particulars of which will
            be provided prior to the hearing.

     R)     The said native title rights and interests are not claimed to the exclusion of any other rights or
            interests validly created by or pursuant to the common law, the law of the Sate or a law of the
            Commonwealth.

In my view the native title rights and interests described at Schedule E are readily identifiable.
Also, the qualifications listed are clear in their scope and intention, reciting general limitations to
the operation of the listed rights and interests, where relevant.

I am satisfied that the description in schedule E allows the native title rights and interests claimed
to be readily identified. The application complies with s190B(4).

I am satisfied the application complies with s190B(4).

Result: Requirements are met




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                                             National Native Title Tribunal




                       Sufficient factual basis:
                       The Registrar must be satisfied that the factual basis on which it is asserted that the
    190B5              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;
                       (b)    that there exist traditional laws acknowledged by, and traditional customs
                             observed by, the native title claim group that give rise to the claim to native
                             title rights and interests;
                       (c)    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

This condition requires me to be satisfied that the factual basis on which it is asserted that there
exist native title rights and interests is sufficient to support that assertion.

In reaching this decision I must be satisfied that the factual basis supports the 3 criteria identified
at s190B5 (a) – (c).

In assessing this condition I am required to examine any assertions made in the application and
any further material provided in support of those assertions.

In applying this condition I have relied on the following material:

         Affidavits of [NAME OMITTED] sworn on 29 November 2000 and 02 March 2001
         Affidavit of [NAME OMITTED] sworn on 17 November 2000
         Affidavit of [NAME OMITTED] sworn on 23 November 2000
         Affidavit of [NAME OMITTED] sworn on 23 November 2000
         Affidavit of [NAME OMITTED] sworn on 17 November 2000
         Affidavit of [NAME OMITTED] sworn on 25 November 2000

Specific examples in support of the conditions, as indicated below, will be drawn from the
affidavits of [NAME OMITTED] and [NAME OMITTED].

s190B(5)(a) – the native title claim group have, and the predecessors of those persons had, an
association with the area

This sub-section requires me to be satisfied that:

    the members of the native title claim group have an association with the area (under claim);
     and
    the predecessors of the members of the native title claim group had an association with the
     area (under claim)

The word „association‟ is not defined in the Act. In my view, the nature of the association
required to be demonstrated by an applicant is governed by the nature of the native title rights and
interests claimed. In this case the applicants claim the rights and interests identified at Schedule E
of the application.

In addition, as native title rights and interests are defined as being related to land and waters (s223
of the Act), in my view the information about the association of members of the native title claim

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                                     National Native Title Tribunal




group must relate to the area of land and waters where the particular native title rights and interests
are claimed. In this case the extent of land and waters claimed is identified at Schedule B of the
application. I must therefore be satisfied that the members of the native title claim group are and
that their predecessors were, broadly associated with the particular land and waters claimed.

Schedule F of the application provides details of the association with the application area. Further,
Schedule G provides details of activities members of the native title claim group currently carry
out in relation to the land and waters the subject of the claim including camping, access, hunting,
gathering, taking and using resources, manufacturing tools from the resources, trading, managing
and caring for land, carrying out ceremonies and passing on the knowledge of the land. The
applicants attest to the truthfulness of these assertions in the affidavits accompanying the
application.

The evidence provided supports the information in Schedules F and G.

The Affidavit of [NAME OMITTED]

    Paragraph 3: I was born in the bush in [YEAR OMITTED] at a place call [PLACE NAME
     OMITTED].
    Paragraph 4: My ancestral country covers the area of land in the Goldfields regions of
     Western Australia including the townships of Kalgoorlie, Coolgardie, Kambalda and
     surrounding districts and Southern Cross, Mukinbudin, and surrounding districts.
    Paragraph 5: I state that the Kapun people held communal native title over the central
     Goldfields including Kalgoorlie, Coolgardie, Kambalda and surrounding districts as well as
     Southern Cross and surrounding districts.
    Paragraph 9: I confirm that my mother has always identified as a Kapun. I also confirm that
     my Grandfather, [NAME OMITTED]… was a Senior Kapun lawman…
    Paragraph 12: My parents moved around, following employment. During their lifetime, they
     lived and worked at Coolgardie, Mt. Burgess Station, Higginville, and surrounding areas, all
     of which is within my claim area. Right up until my parents died they travelled and lived
     thought my claim area. My father is buried at [PLACE NAME OMITTED] cemetery and my
     mother is buried at [PLACE NAME OMITTED] Cemetery.
    Paragraph 17: During my lifetime I worked throughout the claim area. For many years I
     worked around Coolgardie, Southern Cross, Mukinbudin and Salmon Gums. I then settled
     down in Coolgardie when I have lived since.
    Paragraph 18: …For many years, the Kapun survivors of the first gold rush days lived around
     the gold mining centres in the fringe camps and later reserves. The Kapun also lived on
     pastoral properties and farms, working for rations.
    Paragraph 20: …I live in Coolgardie and go out to the country of the claim area regularly.
    Paragraph 21: …I regularly travel over the country checking the condition of its important
     resources…

The Affidavit of [NAME OMITTED]

    Paragraph 2: My parents are [NAME OMITTED] and [NAME OMITTED]. My father, [NAME
     OMITTED] is the eldest son of a Kapun woman, [NAME OMITTED]… [NAME OMITTED]
     belonged to the Kapun people… Her traditional country covers the area of land in the Central
     west and Goldfields regions of Western Australia from around Southern Cross in the west
     towards the townships of Kalgoorlie, Coolgardie, Kambalda and surrounding districts in the
     east.
    Paragraph 3: …my father‟s place of birth was at a place known as [PLACE NAME OMITTED]
     in the [PLACE NAME OMITTED] area, which is to the north west of Coolgardie… It is in the
     Kalamaia Kabu(d)n claim area.


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                                     National Native Title Tribunal




    Paragraph 6: My father and his bother [sic. brother] grew up in the claim area. They lived,
     travelled and worked within the claim area, keeping in contact with other Kapun groups.
    Paragraph 8: …My parents moved around… During their lifetime, they lived and worked
     mostly in the Kalamaia Kabu(d)n claim area…
    Paragraph 11: …I grew up in the Southern Cross area, which along with Coolgardie had
     become a principle centre for the Kapun people. With my parents, I travelled in the
     Kalgoorlie, Coolgardie Southern Cross region… I remember living in camps on the outskirts
     of Kalgoorlie, Coolgardie and Southern Cross.
    Paragraph 12: My parents were a part of [a] large community of Kapun people, who in my
     childhood lived in reserves and camps throughout the Kalgoorlie, Coolgardie, Southern Cross
     region.
    Paragraph 18: After our marriage… [we] lived at [PLACE NAME OMITTED] Station… as
     well as camped around places such as Daveyhurst and Callion. We also lived at Kalgoorlie
     and then Coolgardie…
    Paragraph 19: During my lifetime I have worked throughout the claim area…

The aforementioned information is sufficient to satisfy me that at least some, if not all, of the
applicants to the amended Kalamaia application have, and their predecessors had, an association
with the claim area which satisfies the requirements of this section. The applicants‟ affidavits also
provide examples in support of the assertion that the native title rights and interests claimed exist
and in particular that the native title claim group have, and the predecessors of those persons had,
an association with the area.

On the basis of the above considerations I find that the factual basis upon which it is asserted that
the native title claim group has, and their predecessors had, an association with the area is
sufficient to support the assertion.

The requirements of s190B(5)(a) are met.

s190B(5)(b) – there exist traditional laws acknowledged by, and traditional customs observed by,
the native title claim group that give rise to the claim to native title rights and interests.

This sub-section requires me to be satisfied that:

    traditional laws and customs exist;
    that those laws and customs are respectively acknowledged and observed by the native title
     claim group, and
    that those laws and customs give rise to the native title rights and interest claimed.

The information contained at Schedules F and G of the application asserts the existence,
acknowledgment and observation of traditional laws and customs. The traditional laws and
customs, which give rise to rights and interests in land and waters, are vested in members of the
native title claim group on the basis of:

    descent from ancestors connected to the area
    conception in the area
    birth in the area
    traditional religious knowledge of the area
    traditional knowledge of the geography of the area
    traditional knowledge of resources of the area
    knowledge and use of traditional ceremonies of the area




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                                      National Native Title Tribunal




The applicants attest to the truthfulness of these assertions in the affidavits accompanying the
application. To be satisfied that those laws and customs are respectively acknowledged and
observed by the native title claim group, I have examined the evidence provided.


Affidavit of [NAME OMITTED]

    Paragraph 3: …my birth was in accordance with my people‟s traditional custom… Under our
     traditional laws and customs, [DETAILS OMITTED: AUTHORITY TO SPEAK FOR
     COUNTRY].
    Paragraph 9: …They told me many Kapun spiritual stories, which were connected, particularly
     to the Kalgoorlie and Coolgardie districts.
    Paragraph 13: My father strictly upheld the Aboriginal Law traditions and customs. I
     remember he was regularly absent from home, on Law Business. He would be gone sometimes
     for weeks.
    Paragraph 15: My father was a traditional lawman as was my older brother [NAME
     OMITTED]. Both were [DETAILS OMITTED: ABORIGINAL LAW & CUSTOM] at [PLACE
     NAME OMITTED]… my father was responsible for the maintenance of Aboriginal Law and
     our significant sites in the region from Southern Cross to Kalgoorlie. They participated in Law
     Business throughout this region and beyond it, in the Western Desert.
    Paragraph 24: Of particular concern is the protection of the sites on the major Dreaming
     Track…

Affidavit of [NAME OMITTED]

    Paragraph 9: …my father [NAME OMITTED] and his brother [NAME OMITTED] were
     traditional men. Both were [DETAILS OMITTED: ABORIGINAL LAW & CUSTOM] at
     [PLACE NAME OMITTED]… they were responsible for the maintenance of Aboriginal Law
     and our significant sites in the region from Southern Cross to Kalgoorlie. They participated in
     Law Business throughout this region and beyond it, in the Western Desert.
    Paragraph 10: My father strictly upheld the Aboriginal Law traditions and customs. I
     remember that although he worked for white people, he was regularly absent from home, on
     Law Business. He would pack his bag and be gone, sometimes for weeks. I remember too that
     my father and his brother were fluent in their own and other Aboriginal languages. As a young
     boy, I watched him, my uncles and other relatives, participating in large corroborees at the
     Southern Cross Reserve. On other occasions, I remember [DETAILS OMITTED:
     ABORIGINAL LAW & CUSTOM].
    Paragraph 12: …These families… met regularly for ceremonial and social purposes.
    Paragraph 25: There are many traditional stories that belong to my people. Under our
     customs, these stories are to be taught and handed down to each generation…

I am satisfied that the evidence provided is sufficient to support the assertion that that there exist
traditional laws acknowledged by, and traditional customs observed by, the members of the native
title claim group that give rise to the claim to native title rights and interests.

On the basis of the above considerations I find that the factual basis upon which it is asserted that
there exist traditional laws acknowledged by and traditional customs observed by the members of
the native title claim group that give rise to the rights and interests claimed is sufficient to support
the assertion.

The requirements of s190B(5)(b) are met.




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                                     National Native Title Tribunal




s190B(5)(c) – the native title claim group have continued to hold the native title in accordance
with those traditional laws and customs.

This sub-section requires me to be satisfied that the native title claim group continues to hold
native title in accordance with their traditional laws and customs.

Schedule F states that traditional law and custom has been passed by traditional teaching, through
the generations preceding the present generation, to the present generation of persons comprising
the native title claim group. The assertions at Schedule F together with consideration of the other
information detailed above supports the notion that the native title claim group continues to hold
native title in accordance with traditional laws and customs.

As previously indicated (see (a) & (b) above) Schedules F & G contain assertions in relation to the
traditional laws and customs which give rise to the claimed native title.

Affidavit of [NAME OMITTED]

    Paragraph 16: My father and uncles also passed on certain Aboriginal Laws and traditions to
     me.
    Paragraph 17: …Since our old people passed on it was left up to me and my older brother
     [NAME OMITTED] to look after and maintain our significant sites. We had many of our
     important sites recorded in the WA Museum sites register back in the 1970‟s and 1980‟s.
    Paragraph 20: As one of the oldest members of my family I am actively involved in caring for
     our country. I live in Coolgardie and go out to the country of the claim area regularly. With
     other families connected to the claim area, I have participated in heritage projects that have
     mapped and recorded a number of our sacred sites to ensure their continued preservation and
     protection.
    Paragraph 21: In addition, with family members, I regularly travel over the country checking
     the condition of its important resources including important water holes, the sacred sites, the
     historical places, and the general condition of plant and animal life. We regularly clearout
     and tidy up important water sources, check important sites for damage and report any
     interference. We consider that we have a duty to undertake these activities, because in keeping
     with our tradition, we must care for our country.
    Paragraph 22: I take my children and grandchildren camping in the claim area… In keeping
     with traditional custom, wanton destruction of our animal and plant life is not allowed… My
     family continues to uphold traditional food practices…
    Paragraph 23: …I pass on this oral tradition to my children in accordance with instructions
     received from our old people to continue the preservation of our culture. When I go out on the
     country with them I also teach them about places, and to respect and care for our country in
     accordance with our customs.
    Paragraph 24: …I have spoken with mining companies many times about the protection of our
     important sites. Of particular concern is the protection of the sites on the major Dreaming
     Track…

Affidavit of [NAME OMITTED]

    Paragraph 16: My father passed on certain Aboriginal Laws and traditions to me…
    Paragraph 19: I have participated in heritage protection surveys all over the claim area…
    Paragraph 22: …I have participated in heritage projects that have mapped and recorded a
     number of our sacred sites to ensure their continued preservation and protection.
    Paragraph 23: …I regularly travel over the country checking the condition of its important
     resources including important water holes, the sacred sites, the historical places, and the
     general condition of plant and animal life. We regularly clearout and tidy up important water
     sources, check important sites for damage and report any interference. We consider that we

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                                     National Native Title Tribunal




     have a duty to undertake these activities, because in keeping with our tradition, we must care
     for our country.
    Paragraph 24: I take my children and grandchildren camping in the claim area… My family
     and I also regularly hunt throughout our country…We often also travel through to Southern
     Cross with the family and I make sure and point out places of interest to them… My family
     continue to uphold traditional food practices…
    Paragraph 25: …I learnt many of our traditional customs and stories from my Uncle [NAME
     OMITTED] and from my countryman and kinsman, [NAME OMITTED], who learnt these
     stories from his father. Like him, I pass on this oral tradition to my children in accordance
     with instructions received from our old people to continue the preservation of our culture.
     When I go out on the country with them I also teach them about places, and to respect and
     care for our country in accordance with our customs.

I am satisfied that the evidence provided is sufficient to support the assertion that the native title
claim group have continued to hold the native title in accordance with traditional laws and
customs.

The requirements of s190B(5)(c) are met.

Conclusion

For the reasons set out above I am satisfied that the factual basis upon which the three assertions
contained at s190B(5) are made is sufficient to support the assertions.

I am satisfied that the application complies with s190B(5).

Result: Requirements are met




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                                            National Native Title Tribunal




                       Prima facie case:
 190B6                 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

For the application to meet the requirements of this condition I must consider that, prima facie, at
least some of the rights and interests claimed can be established.

I have already decided at 190B(4) that the native title rights and interests claimed, at Schedule E
are readily identifiable. To meet the current condition, only some of these rights and interests,
prima facie, need to be able to be established.

The term „prima facie‟ was considered in North Ganalanja Aboriginal Corporation v Qld 185 CLR
595 by their Honours Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ, who noted: “The
phrase can have various shades of meaning in particular statutory contexts but the ordinary
meaning of the phrase “prima facie” is: “At first sight, on the face of it; as appears at first sight
without investigation.” [Citing the Oxford English Dictionary (2nd ed 1989)].

I have adopted the ordinary meaning referred to by their Honours when considering this
application.

„Native title rights and interests‟ are defined at s223 of the Act. This definition specifically
attaches native title rights and interests to land and water, and in summary requires:

A. the rights and interests to be linked to traditional laws and customs;
B. those claiming the rights and interests to have a connection with the relevant land and waters;
   and
C. those rights and interests to be recognised under the common law of Australia.

This definition is closely aligned with all the issues I have already considered in relation to
s190B(5), and I refer to my reasons in relation to that section. I have found that there is sufficient
factual basis, for the claimed native title rights and interests.

In relation to the requirement that the rights and interests be recognised under the common law of
Australia, I note that at Attachment E, paragraph (R) of the application states that the native title
rights and interests are not claimed to the exclusion of any other rights and interests validly created
by or pursuant to the common law, a law of the State or a law of the Commonwealth.

Information considered:

I note that there is information included in the application at Schedule E and G that contains a list
of activities, described in general terms. The information, in addition to that within the
application, that I have considered in relation to this section is as follows:

         Affidavits of [NAME OMITTED] sworn on 29 November 2000 and 02 March 2001
         Affidavit of [NAME OMITTED] sworn on 17 November 2000
         Affidavit of [NAME OMITTED] sworn on 23 November 2000
         Affidavit of [NAME OMITTED] sworn on 23 November 2000
         Affidavit of [NAME OMITTED] sworn on 17 November 2000
         Affidavit of [NAME OMITTED] sworn on 25 November 2000



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                                          National Native Title Tribunal




Schedule E of the application contains a description of native title rights and interests claimed as
follows:

     The native title rights and interests of the applicants in relation to the area covered by the application
     include, subject to and in accordance with their laws and customs:

     1.   the right of possession of the land, waters, and the resources and attributes of the land and waters
          (“resources”), along with any other native title holders (if any) and to the exclusion of all other; and
     2.   the right to occupation, use and enjoyment of the land, waters and resources, along with any other
          native title holder (if any) and to the exclusion of all others; and
     3.   further or in the alternative, the right to-
     a)   possession of the land, waters and resources;
     b)   occupation of the land, waters and resources;
     c)   use and enjoyment of the land, waters and resources;
     d)   own and control information comprising and concerning the traditional laws and customs of the
          Gubrun People in relation to the land, waters and resources;
     e)   conduct ceremonies on the land and in relation to the land, waters and resources;
     f)   live on and erect residences and other infrastructure on the land;
     g)   move freely about the land and waters;
     h)   hunt and fish on and from the land and waters and otherwise collect food from the land and waters;
     i)   take from the land and use, the resources of the land, including the plants and animals of the land
          and all other components and attributes of the land useful to people;
     j)   take from the waters and use, the resources of the waters, including the plants and animals of the
          waters, the water and all other components and attributes of the waters useful to people;
     k)   dig for, take from the land and waters and use minerals and ores, and extractive minerals an quarry
          materials such as flints, clays, soil, sand, gravel, rock, and all like resources;
     l)   manufacturer [sic] materials, tools and weapons from the products of the land, waters and
          resources;
     m)   dispose of products of the land, waters and resources, and manufactured products, by trade of
          exchange;
     n)   manage, conserve, and care for the land, waters and resources;
     o)   grant or refuse permission to any other person to do some or all of (a)-(n) either at all or subject to
          terms and conditions;
     p)   inherit native title rights and interests;
     q)   bestow and acquire native title rights and interests; and
     r)   resolve as amongst themselves any disputes concerning land, waters and resources.

     The above native title rights and interests are subject to Schedules P, Q, R in Attachment E.

Schedules P states:

     The application does not refer to any offshore place.

Schedule Q states:

     To the extent that any minerals, petroleum or gas within the area of the claim are wholly owned by the
     Crown in right of the Commonwealth or the State of Western Australia, they are not claimed by the
     applicants.

Attachment E states:

P) The applicants do not make a claim to native title rights and interests which confer possession,
occupation use and enjoyment to the exclusion of all others in respect of any area in relation to which a
previous non-exclusive possession act, as defined in section 23f of the NTA, was done in relation to an area,
and either the act was an act attributable to the State of Western Australia and law of that State has made
provision as mentioned in section 23 in relation to the act.




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                                         National Native Title Tribunal




Q) Paragraph (P) above is subject to such of the provisions of section 47, 47A, and 48B [sic. 47B] of the
act as apply to any part of the area contained with this application, particulars of which will be provided
prior to the hearing.

R) The said native title rights and interests are not claimed to the exclusion of any other rights or interests
validly created by or pursuant to the common law, the law of the Sate or a law of the Commonwealth.

The findings of extinguishment in WA v Ward [2000] 170 ALR; 99 FCR 316 must be considered
in relation to the aforementioned native title rights and interests.

The first and second rights and interests claimed in Schedule E, which are essentially claims to
exclusive possession, occupation, use, and enjoyment, may be registered with respect to areas
where s47, s47A, and s47B apply. These sections are relied upon in Attachment B at paragraph
(4). In relation to the list of specific rights and interests, which is indicated in Schedule E at
paragraph 3 (a)-(r), the following questions, which pertain to the aforementioned Ward decision,
need to be considered:

    Can it be said that these are rights and interests involve physical presence on the area claimed;
     or
    Do they entail activities on the area claimed associated with traditional social and cultural
     practices;
     or
    Are the rights and interests claimed of a purely spiritual or religious affiliation with the land,
     divorced from actual physical use and enjoyment of the land?

If the rights and interests claimed are of a purely spiritual or religious affiliation with the land,
divorced from actual physical use and enjoyment of the land, then those rights and interests fall
foul of the Ward decision and can not be registered.

At Schedule E, paragraph 3, rights and interests labelled (a) to (c) and then (e) to (l) and (n) to(r)
all appear to be acceptable when considered in light of the Ward decision. In relation to right and
interest (o) this can only be made out in relation to land the subject of s47, s47A and s47B or land
on which there is no prior extinguishment. It is evident that these particularised rights and interests
involve direct physical presence on the area claimed, or are needed for this, and are associated
with traditional social and cultural practices.

The rights and interests described at point (d) and (m) are, in light of the Ward decision, not
acceptable for registration.

Material in support of the following rights and interests (as at Schedule E) can be found in the
information listed under the particular rights and interests listed below. Specific examples will be
drawn from the affidavit material provided by [NAME OMITTED] and [NAME OMITTED], as
they are the most senior male applicants to the amended Kalamaia application:

a) possession of the land, waters and resources;
b) occupation of the land, waters and resources;
c) use and enjoyment of the land, waters and resources;

     The affidavit of [NAME OMITTED], sworn on 29 November 2000, at points: 2, 3, 4, 5, 7, 9,
      11, 12, 13, 15, 16, 17, 18, 20, 21,22, 23 & 24.
     The affidavit of [NAME OMITTED], sworn on 17 November 2000, at points: 2, 3, 4, 5, 6, 8,
      9, 10, 11, 12,14, 15, 16, 17, 18, 19, 20, 22, 23, 24, 25 & 26.




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                                     National Native Title Tribunal




e)     conduct ceremonies on the land and in relation to the land, waters and resources;

    The affidavit of [NAME OMITTED], sworn on 29 November 2000, at points: 13, 15 & 23.
    The affidavit of [NAME OMITTED], sworn on 17 November 2000, at points: 9, 10, 14, 16 &
     25.

f)    live on and erect residences and other infrastructure on the land.

    The affidavit of [NAME OMITTED], sworn on 29 November 2000, at points: 4, 5, 12, 15, 17,
     18, 20 & 22.
    The affidavit of [NAME OMITTED], sworn on 17 November 2000, at points: 2, 4, 6, 8, 9, 10,
     11, 12, 14, 18, 19, 20, 24 & 25.

g)    move freely about the land and waters.

    The affidavit of [NAME OMITTED], sworn on 29 November 2000, at points: 4, 5, 7, 11, 12,
     13, 15, 16, 17, 18, 20, 21, 22 & 23.
    The affidavit of [NAME OMITTED], sworn on 17 November 2000, at points: 2, 3, 4, 6, 8, 9,
     11, 12, 16, 18, 19, 20, 22, 23, 24 & 25.

h)    hunt and fish on and from the land and waters and otherwise collect food from the land and
      waters.

    The affidavit of [NAME OMITTED], sworn on 29 November 2000, at points: 16, 21, & 22.
    The affidavit of [NAME OMITTED], sworn on 17 November 2000, at points: 14, 15, 23 & 24.

i)    take from the land and use, the resources of the land, including the plants and animals of the
      land and all other components and attributes of the land useful to people.

    The affidavit of [NAME OMITTED], sworn on 29 November 2000, at points: 16, 21, 22 & 23.
    The affidavit of [NAME OMITTED], sworn on 17 November 2000, at points: 14, 15, 23 & 24.

j)    take from the waters and use, the resources of the waters, including the plants and animals of
      the waters, the water and all other components and attributes of the water useful to people.

    The affidavit of [NAME OMITTED], sworn on 29 November 2000, at points: 16, 21, 22 & 23.
    The affidavit of [NAME OMITTED], sworn on 17 November 2000, at points: 14, 15, 23 & 24.

k)    dig for, take from the land and waters and use minerals and ores, and extractive minerals and
      quarry materials such as flints, clays, soil, sand, gravel, rock, and all like resources.

    The affidavit of [NAME OMITTED], sworn on 29 November 2000, does not discuss the
     aforementioned right and interest.
    The affidavit of [NAME OMITTED], sworn on 17 November 2000, does not discuss the
     aforementioned right and interest.

l)    manufacturer [sic] materials, tools and weapons from the products of the land, waters and
      resources.

    The affidavit of [NAME OMITTED], sworn on 29 November 2000, does not discuss the
     aforementioned right and interest.
    The affidavit of [NAME OMITTED], sworn on 17 November 2000, does not discuss the
     aforementioned right and interest.



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                                            National Native Title Tribunal




n) manage, conserve, and care for the land, waters and resources.

    The affidavit of [NAME OMITTED], sworn on 29 November 2000, at points: 16, 21, 22 & 23.
    The affidavit of [NAME OMITTED], sworn on 17 November 2000, at points: 14, 15, 23 & 24.

o) grant or refuse permission to any other person to do some or all of (a)-(n) either at all or
   subject to terms and conditions;
p) inherit native title rights and interests;
q) bestow and acquire native title rights and interests; and
r) resolve as amongst themselves any disputes concerning land, waters and resources.

The aforementioned native title rights and interests, ie. (o)-(r), are rights and interests that are not
divorced from actual physical use and enjoyment of the land – see [108 of the Ward Decision].

    The affidavit of [NAME OMITTED], sworn on 29 November 2000, at points: 16 & 24.
    The affidavit of [NAME OMITTED], sworn on 17 November 2000, at points: 16 & 26.

Conclusion

The applicants have established prima facie, the following native title rights and interests:

a)        possession of the land, waters and resources;
b)        occupation of the land, waters and resources;
c)        use and enjoyment of the land, waters and resources;
e)        conduct ceremonies on the land and in relation to the land, waters and resources;
f)        live on and erect residences and other infrastructure on the land;
g)        move freely about the land and waters;
h)        hunt and fish on and from the land and waters and otherwise collect food from the land
          and waters;
i)        take from the land and use, the resources of the land, including the plants and animals of
          the land and all other components and attributes of the land useful to people;
j)        take from the waters and use, the resources of the waters, including the plants and animals
          of the waters, the water and all other components and attributes of the water useful to
          people;
n)        manage, conserve, and care for the land, waters and resources;
o)        grant or refuse permission to any other person to do some or all of (a) – (n) either at all or
          subject to terms and conditions;
p)        inherit native title rights and interests;
q)        bestow and acquire native title rights and interests; and
r)        resolve as amongst themselves any disputes concerning land, waters and resources.

These rights and interests are subject to the aforementioned conditions in Schedules P, Q, R in
Attachment E.

I am satisfied that the application complies with s190B(6).

Result: Requirements are met


                       Traditional physical connection:
                       The Registrar must be satisfied that at least one member of the native title claim
    190B7              group:
                       (a) currently has or previously had a traditional physical connection with any part
                           of the land or waters covered by the application; or


Reasons for Decision                                                                           page 43
                                            National Native Title Tribunal




                       (b) previously had and would reasonably have been expected currently to have a
                           traditional physical connection with any part of the land or waters but for
                           things done (other than the creation of an interest in relation to land or waters)
                           by:
                            (i)   the Crown in any capacity; or
                            (ii) a statutory authority of the Crown in any capacity; or
                            (iii) any holder of a lease over any of the land or waters, or any person acting
                                  on behalf of such holder of a lease.


Reasons for the Decision

The requirements of this section are such that I must be satisfied that at least one member of the
native title claim group currently has or previously had a traditional physical connection with any
part of the land or waters covered by the application.

Traditional physical connection is not defined in the 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.

Schedule M of the application states that at least one member of the claimant group has a
traditional physical connection to the claim area. Each applicant has attested to the truthfulness of
this assertion in an affidavit that accompanies the application.

In applying this condition I have relied on the following:

         Affidavits of [NAME OMITTED] sworn on 29 November 2000 and 02 March 2001
         Affidavit of [NAME OMITTED] sworn on 17 November 2000
         Affidavit of [NAME OMITTED] sworn on 23 November 2000
         Affidavit of [NAME OMITTED] sworn on 23 November 2000
         Affidavit of [NAME OMITTED] sworn on 17 November 2000
         Affidavit of [NAME OMITTED] sworn on 25 November 2000

For the reasons given in my reasons for decision in relation to s190B(5), I am satisfied that there
exist traditional laws acknowledged by and customs observed by the claim group sufficient to
support traditional physical connection.

I find that the information provided in the aforementioned affidavits is sufficient to satisfy me that
[NAME OMITTED] and [NAME OMITTED], among others, have the requisite connection with
the claim area to satisfy the requirements of this section.

I am satisfied that the application complies with s190B(7).

Result: Requirements are met




Reasons for Decision                                                                              page 44
                                            National Native Title Tribunal




                       No failure to comply with s61A:
                       The application and accompanying documents must not disclose, and the Registrar
 190B8                 must not otherwise be aware, that, because of s61A (which forbids the making of
                       applications where there have been previous native title determinations or exclusive
                       or non-exclusive possession acts), the application should not have been made.


Reasons for the Decision

For the reasons that follow, I have reached the conclusion that there has been compliance with
s61A and that the requirements of this condition are met.

s61A(1) – Native Title Determination

A search of the Native Title Register reveals that there is no approved determination of native title
in relation to the area claimed in this application.

s61A(2) – Previous Exclusive Possession Acts

At Schedule B, paragraph (2) of the application, the applicants exclude areas in relation to which
the State of Western Australia or the Commonwealth has done previous exclusive possession acts.
Therefore, the application complies with s61A(2).

s61A(3) – Previous Non-Exclusive Possession Acts

The exclusion clause at paragraph (2&3) of Schedule E of the application states that the applicants
do not make a claim to exclusive native title rights and interests in relation to areas where a
previous non-exclusive possession act has been done by either the State of Western Australia or
the Commonwealth. Therefore, the application complies with s61A(3).

s61A(4) – s47, s47A, s47B

The applicants claim the benefit of s47, 47A and 47B at Schedules B, Attachment B, providing
particulars at Schedule L of the application. Whether or not the applicants have provided
sufficient information to bring any area of land and waters covered by the application within the
ambit of sections 47, 47A and 47B is a matter to be settled in another forum. The outcome of such
an inquiry is immaterial here, as I have already found that the application does not offend s61A.

Conclusion

The application complies with s190B(8).

Result: Requirements are met




Reasons for Decision                                                                            page 45
                                            National Native Title Tribunal




                       Ownership of minerals, petroleum or gas wholly owned by the Crown:
                       The application and accompanying documents must not disclose, and the Registrar
 190B9                 must not otherwise be aware, that:

 (a)                   (a) to the extent that the native title rights and interests claimed consist or include
                           ownership of minerals, petroleum or gas - the Crown in right of the Common-
                           wealth, a State or Territory wholly owns the minerals, petroleum or gas;


Reasons for the Decision

In applying this condition I have relied upon information contained at Schedule Q of the
application, which states:

     To the extent that any minerals, petroleum or gas within the area of the claim are wholly owned by the
     Crown in the right of the Commonwealth or the State of Western Australia, they are not claimed by the
     Applicants.

The limitation of the claim contained in the application, as set out in Schedule Q, is not
contradicted by any other information or other documents.

Consequently the application and accompanying documents do not disclose, and I am not
otherwise aware, that the applicants claim ownership of minerals, petroleum or gas that are wholly
owned by the Crown.

The application complies with s190B(9)(a).

Result: Requirements are met




Reasons for Decision                                                                               page 46
                                              National Native Title Tribunal




                       Exclusive possession of an offshore place:
                       The application and accompanying documents must not disclose, and the Registrar
 190B9                 must not otherwise be aware, that:

 (b)                   (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

Schedule P of the application states:

     The application does not refer to any offshore place.

The application complies with s190B(9)(b).

Result: Requirements are met




Reasons for Decision                                                                                   page 47
                                             National Native Title Tribunal




                       Other extinguishment:
                       The application and accompanying documents must not disclose, and the Registrar
 190B9                 must not otherwise be aware, that:

 (c)                   (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

Section 190B(9)(c) states that the Registrar must not otherwise be aware that 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).

The application contains exclusion clauses at Schedule B, Attachment B, Schedule P and Schedule
Q. These exclusion clauses have been detailed a s190B(6).

As previously stated (please refer to s190B(2)), following the findings in WA v Ward [2000] 170
ALR 159; 99 FCR 316, there is no specific mention of areas where mining leases under the 1978
mining legislation and general purpose leases have been granted or where a pastoral lease was
enclosed and/or improved (as the case may be). Although not expressly stated it follows from the
following statement at Schedule B(3), ie. „The applicants exclude from the claim areas in relation
to which native title rights and interests have otherwise been extinguished…‟, that the applicants
exclude, for example, any areas covered by mining or general purpose leases where such leases
extinguish native title.

I am satisfied that these general exclusion clauses effectively exclude any areas where native title
has been extinguished, but where the application has not otherwise excluded them.

Even if areas of the type prohibited by s190B(9)(c) are located within the external boundary of the
area of the application, such areas are excluded by virtue of the clauses contained in the
application.

The application complies with s190B(9)(c).

Result: Requirements are met


                                                    End of Document




Reasons for Decision                                                                              page 48

								
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