The delegate's reasons summarised
29 As noted, the delegate gave comprehensive reasons in support of her decision to accept the amended claimant application for registration. It is unnecessary to summarise all those reasons. It is sufficient to focus upon those parts of the reasons which related to the grounds of challenge in the present proceeding. Apart from the general complaint of procedural unfairness, those grounds primarily relate to the delegate's finding that the disputed apical ancestors were validly included in the further amended claimant application and the information which was not taken into account by the delegate on that subject.
30 The delegate said that, having considered s 190A(3), she considered that the amended claimant application and information in any other document provided by the applicant was "the primary source of information for the decision I made" (at [7]). Accordingly, she said that she had taken into account information contained in the application and accompanying documents, the geospatial assessment prepared by the National Native Title Tribunal's Geospatial Services on 17 July 2020 and the results of her own searches using the Tribunal's registers and mapping database.
31 The delegate described her understanding of procedural fairness requirements at [8]. She said that she had ensured relevant procedural fairness requirements had been complied with by inviting the State of Queensland to make any submissions on the issue of registration and by informing the applicant for registration that any additional information should be provided. Apparently neither opportunity was taken up.
32 The delegate then discussed at some length her understanding of matters relating to s 190C(2) and (3) by reference to the legislation and relevant case law, including Mansfield J's decision in Northern Territory of Australia v Doepel [2003] FCA 1384; 133 FCR 112, Mansfield J's separate decision in Hazelbane v Doepel [2008] FCA 290; 167 FCR 325 and Strickland Full Court.
33 With particular reference to s 190C(3), the delegate noted at [32] that her search of the Tribunal's mapping database revealed that the claimant application in NSD876/2020 partly overlapped with the area covered by the application in QUD331/2017. She added, however, that since that other application was only made on 4 August 2020 and had not at that stage been considered for registration, she was satisfied that there was no "previous application" to which ss 190C(3)(a)- (c) applied. This had the consequence, so the delegate found, that she did not need to consider the requirements of s 190C(3) any further.
34 The delegate also explained at some length why she was satisfied that the condition in s 190C(4) (concerning the identity of claimed native title holders) was also met, having regard to the material before her concerning two authorisation meetings held on 15 February 2020.
35 In explaining why she was satisfied with the relevant conditions in s 190B regarding the merits of the claim and, in particular, that there was a sufficient factual basis to support the claim that the native title claim group have, and their predecessors had, an association with the area, the delegate referred to various information set out in the further amended claimant application.
36 It is important to appreciate the structure of that part of the delegate's reasons for decision relating to her satisfaction that the requirement in s 190B(5)(a) was met. The delegate's reasons for concluding that she was satisfied that there was a sufficient factual basis for the three conditions in ss 190B(5)(a), (b) and (c) are set out at [81]-[115]. The delegate first described what she considered was needed to meet the condition in s 190B(5). Her analysis may be summarised as follows:
(a) After referring to Doepel (at [17]) and to the Full Court's decision in Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157; 171 FCR 317 (Gudjala Full Court) (at [57], [83] and [91]), the delegate stated that she "must treat the asserted facts as true and consider whether those facts can support the existence of the native title rights and interests that have been identified".
(b) The delegate then stated that, although the facts asserted are not required to be proven by the applicant, she needed to be satisfied that the asserted facts provide sufficient detail to enable a "genuine assessment" of whether the particularised assertions regarding the three criteria in s 190B are supported by the applicants' factual basis material (citing Gudjala Full Court at [92]).
(c) The delegate said that the applicants' material must be "more than assertions at a high level of generality" and must not merely restate or be an alternative way of expressing the claim (referring inter alia to Gudjala People #2 v Native Title Registrar [2009] FCA 1572; 182 FCR 63 at [28]-[29]; see also Gudjala Full Court at [92]).
(d) The delegate concluded that the test in s 190B(5) "requires adequate specificity of particular and relevant facts within the claimants' factual basis material going to each of the assertions," before she could be satisfied of its sufficiency for the purposes of s 190B(5).
37 The delegate said at [86] that the factual basis material was primarily contained in Attachments F and M to the further amended claimant application.
38 With those background matters in mind, the delegate then proceeded to explain why she was satisfied that each of the three elements of s 190B(5) was supported by sufficient material, while noting that she would discuss only those aspects of the material that in her view were most relevant to her consideration.
39 With specific reference to the requirement that there be sufficient factual material to support the assertion that the native title claim group have, and the predecessors of those persons had, an association with the area, the delegate at [88] explained that it was her understanding that this required:
• an association between the whole group and the area, although not all members must have such association at all times;
• the predecessors of the group were associated with the area over the period since sovereignty; and
• there is an association with the entire claim area, rather than an association with part of it or very broad statements which have no geographical particularity.
40 The delegate made clear that her understanding concerning those matters was based upon case law to which she made express reference.
41 At [89] ff, the delegate explained why she was satisfied that there was sufficient factual material to support the assertion that there is an association between the whole group and the area, even though she recognised that not all members must have such an association at all times. This statement of the position accurately reflects what Dowsett J held in Gudjala People #2 v Native Title Registrar [2007] FCA 1167 at [52] (although the appeal against this decision was upheld in Gudjala Full Court, the Full Court did not question the correctness of what Dowsett J said at [52]). In other words, the relevant issue is not whether the Registrar is satisfied that there is sufficient factual material to support an assertion that there is an association between the area and every native title claim group member. Rather, the question focusses upon the sufficiency of the factual material supporting the assertion that there is an association between the whole group and the area.
42 Later in her analysis at [89], the delegate then turned her attention to information concerning the association of some of the apical ancestors and the area.
43 With respect to Kitty Sandy and her son, and John ('Johnny') Bungaree/Bungary, the delegate said at [89]:
…
- Kitty Sandy is said to have been traditionally associated with areas south of the application area and likely had rights and interests extending into the claim area. She worked for a pastoralist during the 1860s. Her son is said to have been associated with the mid-eastern and central regions. He married his first wife in the mid-eastern region in 1883 and their children were born in or near the mid-eastern, central and southern regions. Her son married his second wife in the mid-eastern region and the children were born there or near the southeastern region.
…
- John (Johnny) Bungaree/Bungary was connected to the southeastern and central regions of the claim area. He was born in the late 1840s or late 1850s and died near the southeastern region in 1943. He was married around 1882 near the mid-eastern region and his sons were born there in around 1883. His sons were married in the central region in 1911 and 1912. One son died in the central region in 1958 and the other son was buried there around 1959. A particular family group who are descendants of this apical ancestor, has continued strong connection to the central region making them an important family in the region.
…
44 These findings are supported by information relating to those two apical ancestors in Attachment F to the further amended claimant application and, in particular, the following material contained therein (without alteration):
(9) Kitty Sandy, mother of Arthur Ford
a) Kitty Sandy (nd-nd) was the mother of Arthur Ford and was identified as a woman working for pastoralists during the 1860's. Arthur Ford's 1897 marriage certificate to his second wife Eva Williams and his 1954 death certificate both give his parents as James Ford (ndnd) and Kitty Sandy. Arthur's marriage certificate and a number of his children's birth certificates indicate that he was born at Murwillumbah, N.S.W. One of his daughter's birth certificate specifies his birthplace of "Kynamboom". Kitty Sandy and her son Arthur Ford, are associated with Murwillumbah and Tweed Heads area and Arthur with areas on the Gold Coast, including Southport. Arthur is said by descendants to also have had long term association with the Beaudesert area through his second marriage to Eva Williams (a daughter of Danggan Balun apical William Williams (1847-1927) and Emily Jackey (1853-1929) the daughter of apical Bilin Bilin (c.1879-1944).
b) Arthur's first wife as Julia Sandy (c.1864-1896) is also an apical ancestor on the Danggan Balun claim. On the 1894 birth certificate for their son Arthur Francis Ford (1894-1916) it was indicated that they married in March 1883 at Nerang. The couple had 10 children together born at Southport, Beaudesert and Murwillumbah.
c) After the death of his first wife Julia, Arthur Ford married Eva Williams at Southport in 1897 Arthur Ford and Eva Williams had 14 children together, who were born at Southport and Murwillumbah. Both Arthur and Eva are buried in the Tweed Heads cemetery.
d) Kitty Sandy, the mother of Arthur Ford appears to have been traditionally associated with the Lower Tweed River-Kynnumboon area, and persons associated with that local country are likely to have held rights and interests which extend into the Danggan Balun claim area.
e) The modern day descendants families of Kitty (mother of Arthur Ford) include the Ford, Bostock, Bylerley, Levinge, Atkins, King, Clarke, Mitchell, Andrews, Sato, Thomson, Mathews, Currie, Christoffell, Clinton, Smeljis, Mowatt, Booka, Buxton, Davidson, Paton, Buchanan, McDonald, Andrews, McDermott and Davies families. Danggan Balun Applicant member Shaun Davies is a descendant of Kitty Sandy.
…
(23) John "Johnny" Bungaree/Bungary (father of Norman Sandy Snr, Lindsay Sandy and Stella Bungera/Bungary)
a) John Bungaree (c.1859-1943) can be traced with reasonable accuracy through archival records. John Bungaree died at Tweed Heads, N.S.W on 6 August 1943 aged 84 years suggesting a birth year of circa 1859. On an 1894 Deebing Creek record his age was given as 45 years suggesting an earlier birth year of circa 1849. On this 1943 death certificate, Bungaree was listed as only having 2 children, the twin boys Norman (c.1883-1958) and Lindsay Sandy (c.1883-1959) and his wife was listed as Mary Sandy (c.1848-b.1940) whom he married at Southport circa 1882. Mary Ann Mitchell nee Sandy is also an apical ancestor on the Danggan Balun claim. John Sandy aka Bungaree/Bungary seems to have associations with the Tweed as well as the Beaudesert area.
b) Twins Norman and Lindsay Sandy were born in Southport in circa 1883. Norman Sandy appears to have been married to a woman named Amy who died near Nanango in September 1905. Norman then married Margaret Yarry/Yarrie (>1891-1949) in 1912 at Beaudesert and they had 11 children together. Norman Sandy died on 2 July 1958 at Beaudesert aged 75 years.
c) Lindsay Sandy married Lily Williams (c.1888-1968) in 1911 at Beaudesert. Lily was the daughter of Emily Logan and the granddaughter of apical ancestor /Bilin Bilin/Jackey Jackey. Lindsay and Lily Sandy had 7 children together. Lindsay Sandy died on 27 March 1959 at Coopers Plains in Brisbane and is buried in Beaudesert.
d) John Bungaree probably also had a daughter named Stella Terare nee Bungera/Bungaree (>1888-1959). Descendants of Stella Terare, said that they understood Stella to have originally been from Beaudesert from the "Sandy/Bungaree mob" and later moved to Kyogle and Murwillumbah area. Stella Bungera married Nossack Terare at Cudgen NSW on 20 April 1909. Her parents were given as Johnnie Bungera and Annie.
e) The account of Stella looking after John Bungary until his death at Fingal Head in 1943 is supported by strong circumstantial evidence. Electoral Rolls show Stella to be living close to Fingal Head between at least 1936 and 1943. The 1942 newspaper account of her being struck by a car gave her residence as Parry's estate in Tweed Heads. This would suggest that Stella and John Bungary lived very close to each other up until the time of his death. This makes it very likely that Stella's father was the same person as the father of Lindsay and Norman Sandy.
f) The Sandy family has continued strong connection to the Beaudesert area. This long, generational association of the Sandy family group with the claim area, especially Beaudesert, locates them as an important family in the region.
g) The modern day descendant families of John 'Johnny' Bungaree/Bungary include Sandy, Jack, Bonner, Boyd, Williams, McGrady, Currie, Lindren and Bray families. This includes Danggan Balun Applicant members Germaine Paulson and Louisa Bonner.
45 As noted above, the applicants' original judicial review challenge was directed to the delegate's analysis and findings with respect to those two disputed apical ancestors. For the first time, in their written reply which was filed shortly before the hearing, the applicants identified two additional apical ancestors as being the subject of challenge, namely Jack Slab/Slabb Snr (husband of Lizzie Waggil Slabb & father of Charlotte, Frank, John/Jack Jnr, Olive & Victor) and Billy Terribah/Didiba Andrews. It is apposite to note the following information relating to those two apical ancestors in Attachment F to the native title application (without alteration):
(3) Jack Slab/Slabb Snr (husband of Lizzie Waggil Slabb & father of Charlotte, Frank, John/Jack Jnr, Olive & Victor)
a) The Deebing Creek School Register lists Jack Slab as a full blood man from Southport and suggests he was born circa 1873. Jack Slab's wife is also recorded as Lizzie Slab aka Waggil, along with their two children; Charlotte Slab, born circa 1900 and F. Slab, born circa 1902, both at Deebing Creek. Jack Slabb and Lizzie Slabb (nee Smith) raised 5 children together, Charlotte Browning (nee Slabb) (c. 1900-nd), Frank Slabb (c. 1902-nd), Jack Slabb Jnr. (1905-1930), Olive Slabb (1909-1923), and Victor Slabb (1912-nd).
b) From circa 1911, the Slabbs were associated with the Aboriginal reserve at Fingal Point near Tweed Heads N.S.W and Jack Slabb's eldest four children appear in a Fingal Head School photograph in 1913. Many of Jack Slab/Slabb's descendants continue to have a close association with Fingal N.S.W. and to parts of the Gold Coast section of the claim area.
c) Present day descendants of Jack Slab Jnr include the Slab/Slabb, Browning, Ferguson, Shield, Combo, Rotumah, Kirby, Randall, Stewart, Charles, Thompson, Harris, Robson, Phillips, Lesiputty and Daylight families.
…
(7) Billy Terribah/Didiba Andrews
a) King Billy Andrews aka Terribah (nd-c.1904) was referred to as the King of Murwillumbah. He was a long term resident of Murwillumbah but he was born in Nerang. His parents were claimed to be "Tweed natives". Gresty (1947) mentions that King Billy Andrews was also known by the Aboriginal name Terribah and was a recipient of a brass breastplate inscribed Billy Andrews, King of Murwillumbah.
b) King Billy Tinderrah Andrews was said to have been "the last of the Tweed line" along with a set of senior men ("King Wilson (king of Kooran Creek); King Taboo Jackie (king of Karara opposite Chinderah), and King Sandy, of Kynnumboon") who are all described as having country located within a few kilometres of the southern boundary of the Danggan Balun claim area:
c) Whether Billy Terribah/Didiba Andrews had descendants is yet to be confirmed.
46 With respect to the first of those two additional disputed apical ancestors, the delegate said at [89]:
…
- Jack Slab/Slabb Snr was from around the eastern region and was born around 1873. His children were born around the early 1990s near the northwestern region.
…
47 There is no specific reference in this part of the delegate's reasons to information in Attachment F relating to Billy Terribah/Didiba Andrews. As noted immediately above, the delegate selected only some of the apical ancestors in highlighting the factual basis for her findings.
48 The delegate's reasons for concluding that she was satisfied that there was a factual basis sufficient to support the assertion in s 190B(5)(a) are primarily set out in [91]-[94] of her reasons for decision (noting in particular how [92] and [93] focus squarely on the central issue of the delegate's satisfaction that there is sufficient factual material to support the assertion of an association between the group and the area (footnotes omitted)):
[91] There is also, in my view, a factual basis that goes to showing the history of the association that members of the claim group have, and that their predecessors had, with the application area. The factual basis indicates that Aboriginal people were recorded to be present in the application area from as early as the 1770s and that the area was heavily populated by Aboriginal people at the time of first European contact. Effective sovereignty in the area occurred between the mid-1840s in the inland parts and as late as the 1860s to 1870s in some parts of the coastal sections. Many of the apical ancestors or their predecessors were living within the application area at this time. For example, Coolum was born around 1837 and was the head of a clan in the central region in the 1870s. His wife was also from that area, where their children were born and where his wife was buried. His descendants maintain a connection to the central region. One of his descendants describes being born there in the 1940s and maintaining a strong spiritual and physical association to the claim area by living there, visiting family and friends, camping, hunting, and fishing.
[92] For the purposes of s 190B(5)(a), I must also be satisfied that there is sufficient factual material to support the assertion of an association between the group and the whole area. The asserted facts indicate that Aboriginal people were observed in the 1770s near the southeastern region of the claim area. The apical ancestors, their children and grandchildren were either born, lived, married, had children, died, were buried or were otherwise connected to areas around the northern, northwestern, central, mid-western, mid-eastern, southwestern, southern or southeastern parts of the external boundary of the claim area. Some of their descendants continue to have strong connections to those areas where they live, camp, hunt, fish, and do other traditional activities. They also know of sacred places within the claim area and the five rivers that flow throughout the country that connect the landholding groups.
[93] From the above information, I consider that the factual basis is sufficient to support the assertion of an association, both physical and spiritual, 'between the whole group and the area'. In my view, the factual basis material provides sufficient examples and facts of the necessary geographical particularity to support the assertion of an association between the whole group and the whole area.
[94] Given the information before me, I am satisfied that the factual basis provided is sufficient to support the assertion described by s 190B(5)(a).