the member's decision
12 The applicant's attack on the member's decision is focused upon the member's interpretation and application of the conditions for registration referred to in s 190B(5)(a) and s 190B(5)(b) of the Native Title Act.
13 As mentioned, the member, like the delegate, was not satisfied that there had been compliance by the applicant with those conditions.
14 In relation to s 190B(5)(a), the member found that the material provided by the applicant did demonstrate a factual basis sufficient to support the assertion that the claim group have, and their predecessors had, an association with the land area of the claim and the portion of the sea claim between Rottnest Island and the mainland. However, the member went on to find that the material provided by the applicant did not demonstrate a factual basis which was sufficient to support the assertion that the claim group have, and their predecessors had, an association with that part of the claim area over the sea area west of Rottnest Island.
15 This was fatal to the acceptance of the claim for registration. This is because the member found that it was necessary for the material to provide a factual basis sufficient to support the assertion that the claim group have, and their predecessors had, an association with the whole of the claim area. In support of that construction of s 190B(5)(a), the member referred to the following observations of Dowsett J in Gudjala People # 2 v Native Title Registrar [2007] FCA 1167 at [52] (Gudjala People # 2):
I do not mean that all members [of the claim group] must have such association at all times. However there must be evidence that there is an association between the whole group and the area.
16 Immediately thereafter, the member went on to say:
In short the test is not that there is evidence before the Delegate that each member of the claim group has an association over the whole area, but cumulatively, there is material before the delegate that shows an association between the whole group and the whole area of the claim. (Emphasis added)
17 In reaching his decision, the member had regard to the material that was before the delegate, which included affidavits sworn on 24 November 2011 by each of Ms Bella Bropho and Mr Albert Corunna. The member also had regard to materials which had not been before the delegate, namely, the applicant's submissions dated 12 April 2012, the affidavit of Mr Corunna sworn on 18 April 2012 and Mr Corunna's email sent on 27 April 2012.
18 The member recorded that Ms Bropho (one of the persons comprising the applicant) had deposed that her family had been turtle hunters. The member observed that this hunting was apparently focused on the Swan River coastal plain and that there had been no suggestion that the hunting of the turtles took place other than on the landward portion of the claim area.
19 The member mentioned that Mr Corunna also referred in his affidavit, sworn on 24 November 2011, to turtle hunting. The member observed that the only place where this was said to occur was the swamp across the Roe Highway from the Midland brickworks. The member said that Mr Corunna had also referred to fishing and this related to the landward portion of the claim area.
20 The member went on to observe that there was also a reference in Ms Bropho's affidavit to Rottnest Island but the reference was ambiguous and could not be said to provide a solid basis for inferring that the claim group's association with the island was traditional.
21 The member then considered Mr Corunna's affidavit, sworn on 18 April 2012, and Mr Corunna's email of 27 April 2012. The member referred at [88]-[92] of his reasons, to the contents of those documents in the following terms:
[88] Mr Corunna deposed (para 4) to the Waugal, who "is our ancestor from the Dreamtime." According to Dreamtime stories, the Waugal created fresh water, the running water which carved out the valleys and hills and made the streams, rivers and lakes. Members of the claim group are kalyeep (see [105a]) to their Country by the movements of the Waugal. Wherever the Swan River flows, Mr Corunna deposes the claim group has rights in those lands and waters. One of the Dreamtime stories (para 6) is that Garden Island, Carnac Island and Rottnest Island used to be connected to the mainland, and Mr Corunna's ancestors are buried in the sand plains now covered by water. As custodians of the Swan River, that members of the claim group have a duty to protect the graves of their ancestors as well as the Swan River, including that portion which is said to be submerged under the sea, but which was originally carved out of the land by the Waugal.
[89] Further, Mr Corunna deposed (para 7) that the Waugal moved through a deep channel that goes out to sea "further than Rottnest Island."
[90] In his email set out at [6], Mr Corunna states that the claim group has an interest in protecting the bed of the Swan River, which he states extends beyond Fremantle and beyond Rottnest Island. He said "Our Waugal created it and then caused it to be covered by water."
[91] Further, Mr Corunna also states that the claim group asserts "all of the rights and interests under Schedule E in relation to the three offshore islands in the claim area". In this regard he refers to a statewide meeting of Lawmen on Rottnest Island in 1994. He said: "(W)e were entrusted with responsibility to look after the graves of their people on the island. This was because the Lawmen recognized that the islands were part of our Ancestral land. Out of this meeting we formed the Rottnest (Wadgemup) Island Deaths Group Aboriginal Corporation, and members of the claim group still work to protect its spiritual significance."
[92] In their letter of 12 April 2012, the persons collectively comprising the Applicant, also drew to my attention extracts from the Perth Gazette of 29 October 1836 and 20 April 1839 where there are references to the traditional owners belief that Garden, Carnac and Rottnest Islands were once connected to the mainland, and that the separation "was caused, in some preternatural manner, by the waugal." (Original emphasis.)
22 The member concluded that the materials demonstrated that there were Dreaming stories that related to the waters immediately off the coast and the islands near the mainland. The member observed that the eastern point of Rottnest Island, for example, was only nine nautical miles from Fremantle. However, said the member, the boundaries of the claim extended far beyond Rottnest Island and the distance from the western point of Rottnest Island to the outer boundary of the sea claim was 42 nautical miles.
23 The member then went on to say at [98]-[100]:
[98] The only material before me which suggested any type of association with this huge expanse of sea, are two very short statements by Mr Corunna. First at paragraph seven of Mr Corunna's affidavit of 18 April 2012 he deposes: "the Waugal moves through a deep channel that goes out to sea, further than Rottnest Island." Second in the email set out at [6] Mr Corunna asserts that the claim group has an interest in protecting the bed of the Swan River which it is said extends beyond Rottnest Island. It should be noted though, that Mr Corunna does not state how far beyond Rottnest Island the claim group's interest extend [sic]. Nor is there any other material to support this assertion.
[99] Accordingly, there is no further material which supports the claim group's association with this area. The bulk of the 8,774 square kilometres of the sea portion of the claim area lies to the west of Rottnest Island, but there is simply a dearth of material establishing any association with this massive expanse of sea.
[100] To sum up, I have before me almost no material showing an association (whether physical or spiritual) between members of the claim group and the bulk of the sea portion of the claim area. The sea portion of the claim area comprises the majority of the claim area; 8,774 square kilometres of the total area of 16,824 square kilometres. If the sea boundary of the claim was restricted to that part of the sea lying immediately off the coast and extending to the islands mentioned previously, then it may have been open to make a positive finding pursuant to s 190B(5)(a). However, that is not the case, and I am accordingly, unable to be satisfied that the requirements of s 190B(5)(a) are met. (Original emphasis.)
24 The paucity of the material in relation to the sea portion of the claim west of Rottnest Island, was also the basis upon which the member found that he was not satisfied that the claim met the standard imposed by s 190B(5)(b) of the Native Title Act. The member concluded at [116] of his reasons, as follows:
However, there is simply a dearth of material which could support a finding that the huge expanse of sea which forms part of the claim area is linked to the traditional laws and customs of the claim group. The absence of any evidence which would support the assertion that the traditional laws and customs of the claim group apply to the vast expanse of sea which forms more than half of the claim area, is an insuperable barrier to a positive finding pursuant to s 190B(5)(b).
25 Section 190B(5)(c) requires a consideration of whether there was a factual basis sufficient to support the assertion that the native title claim group had continued to hold the native title in accordance with their traditional customs. The member found that this condition had not been satisfied for the same reason which underlay his decision in respect of s 190B(5)(a) and s 190B(5)(b).
26 As a consequence of the findings that the member made in relation to the paucity of material provided in respect of that portion of the sea claim west of Rottnest Island, the member also found that the condition in s 190B(6) had not been met.