McLennan v State of Queensland

FACTUAL CONTEXT AND PROCEDURAL HISTORY 6 On 9 October 2012, in accordance with s 87 of the NTA, Rares J determined that the Jangga People held native title in an area of Central Queensland to the east of the Jangga People #2 claim (the Jangga People determination). 7 On 8 June 2018, the Jangga Applicant filed the Jangga People #2 claim. It related to an area to the west of the Jangga People determination area (the claim area). 8 As is mentioned above, the claim was subsequently referred to the Registrar to consider whether it should be accepted for registration on the Register of Native Title Claims. 9 On 13 July 2018, a delegate of the Registrar formed the preliminary view that "the application may not meet certain conditions of the registration test". She notified the lawyers for the Jangga Applicant accordingly. 10 In response, first, on 9 August 2018, the Jangga Applicant provided submissions to the delegate together with an affidavit of Mr Colin McLennan, affirmed 8 August 2018. Then, on 29 August 2018, the Jangga Applicant filed an amended application which addressed various technical deficiencies in the original application but did not change the substantive basis upon which the claim was made. 11 On 16 November 2018, following a further exchange of correspondence with the Jangga Applicant's lawyers, the delegate gave notice under s 190D(1) of the NTA of her decision to refuse to accept the Jangga People #2 claim for registration. In her written reasons for that decision (the delegate's reasons), she expressed the opinion that the claim did not satisfy all of the conditions in s 190B of the NTA. 12 On 21 December 2018, the Jangga Applicant filed the present application for review of the delegate's decision. 13 On 22 February 2019, the Registrar, who had been named as the second respondent to this application, filed a notice that she would submit to the orders the Court made in this application, save as to costs. 14 Initially the State of Queensland, the first respondent, adopted the same position. However, at a subsequent case management hearing, while it emphasised that it would maintain a neutral position with respect to the application, the State agreed to act as amicus curiae to assist the Court. Orders were made accordingly on 13 August 2019. 15 Finally, it is important to note that, on 6 September 2019, the Jangga Applicant filed the following further affidavit in support of this application: (a) an affidavit of Dr Phillip Allan Clarke, affirmed 25 June 2019; and (b) an affidavit of Colin McLennan, affirmed 6 September 2019. The significance of this evidence will emerge below.

THE NATURE AND SCOPE OF THIS REVIEW 16 Section 190F of the NTA relevantly provides: Applicant may apply to Federal Court for review (1) If the Registrar gives the applicant a notice under subsection 190D(1), the applicant may apply to the Federal Court for a review of the Registrar's decision not to accept the claim, provided the NNTT is not reconsidering the claim under section 190E at the time the application is made. Federal Court has jurisdiction (2) The Court has jurisdiction to hear and determine an application made to it under subsection (1). … The NNTT has not been asked to reconsider the Jangga People #2 claim under s 190E. 17 The review provided for by this section is different in nature from an appeal under s 24 of the Federal Court of Australia Act 1976 (Cth) and it is different in scope from an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The former is quintessentially directed to the correction of error in the primary judgment or decision: see Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 and Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408; [2018] HCA 30 at [30] per Gageler J. The latter is limited to a question of law: see Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92. 18 Neither of these constraints applies to a review under s 190F of the NTA. That is to say, first, the primary object of a review under s 190F is not the correction of error. Secondly, such a review extends in scope to both questions of fact and law. Furthermore, in such a review, the Court is not limited to the materials before the primary decision-maker and it may have regard to any additional evidence it considers to be relevant: see Western Australia v Strickland (2000) 99 FCR 33; [2000] FCA 652 (Strickland) at [65] and [67] per Beaumont, Wilcox and Lee JJ and Pappin on behalf of the Muthi Muthi People v Attorney-General of New South Wales [2017] FCA 76 at [34] and [36] per Griffiths J. Finally, upon conducting such a review and concluding that a review ground has been made out, the Court is able, in the exercise of its original jurisdiction, to make "appropriate orders … to do justice between the parties" (Strickland at [66]). 19 The last feature above has an important effect in the present review. That is so because, if the additional evidence filed by the Jangga Applicant (see at [15] above) addresses the deficiencies identified in the delegate's decision, it will be unnecessary to examine that decision to determine whether it is affected by error. It is therefore convenient to begin this review by considering the relevance and effect of that evidence. 20 The relevance of that evidence is dictated by the conditions for the acceptance of a claim for registration prescribed in Part 7 of the NTA, including, in particular, ss 190B and 190C. Of particular relevance in this matter are the conditions set by s 190B. That section relevantly provides: … Factual basis for claimed native title (5) The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions: (a) that the native title claim group have, and the predecessors of those persons had, an association with the area; and (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; and (c) that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs. Prima facie case (6) The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established. Note: If the claim is accepted for registration, the Registrar must, under paragraph 186(1)(g), enter on the Register of Native Title Claims details of only those claimed native title rights and interests that can, prima facie, be established. Only those rights and interests are taken into account for the purposes of subsection 31(2) (which deals with negotiation in good faith in a "right to negotiate" process) and subsection 39(1) (which deals with criteria for making arbitral body determinations in a "right to negotiate" process). Physical connection (7) The Registrar must be satisfied that at least one member of the native title claim group: (a) currently has or previously had a traditional physical connection with any part of the land or waters covered by the application; or (b) previously had and would reasonably have been expected currently to have a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to land or waters) by: (i) the Crown in any capacity; or (ii) a statutory authority of the Crown in any capacity; or (iii) any holder of a lease over any of the land or waters, or any person acting on behalf of such a holder of a lease. 21 In this matter, the pertinent conditions fall into two categories: those that the delegate decided the Jangga People #2 claim had met; and those that the delegate decided the claim did not meet. The following pre-conditions fall into the former category: (a) identification of area subject to native title: s 190B(2) (delegate's decision at [22]); (b) identification of the native title claim group: s 190B(3) (delegate's decision at [27]); (c) identification of claimed native title: s 190B(4) (delegate's decision at [32]); (d) no failure to comply with s 61A: s 190B(8) (delegate's decision at [92]); (e) no extinguishment etc of claimed native title: s 190B(9) (delegate's decision at [93]); and (f) procedural and other matters: s 190C (delegate's decision at [94], [100], [108], [109] and [123]). There is no dispute in this matter that the delegate was correct in the conclusions she reached about the claim meeting these six pre-conditions. 22 The central issues raised by this application relate to the three pre-conditions that fall into the second category. They are whether: (a) the ancestors of the claim group had a connection to the claim area: s 190B(5)(a) (delegate's decision at [73]); (b) the claim group has a connection to the claim area: s 190B(5)(a) (delegate's decision at [73]); and (c) the claim group acknowledges traditional laws and observe customs that give rise to native title rights and interests in the claim area: s 190B(5)(b) (delegate's decision at [78]). 23 Because the delegate did not consider the claim met those three conditions, she also considered the claim did not satisfy the following conditions: (a) the claim group continues to hold native title in the claim area in accordance with their traditional laws and customs: s 190B(5)(c) (delegate's decision at [84]); (b) prima facie, at least some of the native title rights and interests claimed in the application can be established: s 190B(6) (delegate's decision at [87]); and (c) at least one member of the native title claim group currently has a traditional physical connection with any part of the land or waters covered by the application: s 190B(7) (delegate's decision at [91]). 24 Before proceeding to consider the additional evidence mentioned earlier, it is appropriate to note a number of principles concerning the provisions of s 190B described in [22] and [23] above. First, the condition in s 190B(5) relates to the requirement in s 62(2)(e) of the NTA, that an applicant provide: a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist and in particular that: (i) the native title claim group have, and the predecessors of those persons had, an association with the area; and (ii) there exist traditional laws and customs that give rise to the claimed native title; and (iii) the native title claim group have continued to hold the native title in accordance with those traditional laws and customs … 25 With respect to that requirement, in Gudjala People No 2 v Native Title Registrar (2008) 171 FCR 317; [2008] FCAFC 157 the Full Court (French, Moore and Lindgren JJ) observed (at [91]): What then is the nature and quality of information required by s 62? In substance, s 62(1) requires that the accompanying affidavit must contain evidence that the applicant believes the claimed rights have not been extinguished, believes none of the claimed area is covered by an entry in the Register, believes all the statements made in the application are true and that the applicant is authorised to make the application. The application must contain the details specified in s 62(2) and may contain details of the matters referred to in s 62(1)(c). There is an obvious link between the requirement that the evidence of the applicant include a statement that the applicant believes that all the statements in the application are true and the requirements that the application contain the details specified in s 62(2) together with the identification of the details in that subsection. 26 Secondly, the function the Registrar is performing when applying s 190B(5) was described by Mansfield J in Northern Territory of Australia v Doepel (2003) 133 FCR 112; [2003] FCA 1384 (Doepel) in the following terms (at [17]): Section 190B(5) is carefully expressed. It requires the Registrar to consider whether the "factual basis on which it is asserted" that the claimed native title rights and interests exist is "sufficient to support the assertion". That requires the Registrar to address the quality of the asserted factual basis for those claimed rights and interests; but only in the sense of ensuring that, if they are true, they can support the existence of those claimed rights and interests. In other words, the Registrar is required to determine whether the asserted facts can support the claimed conclusions. The role is not to test whether the asserted facts will or may be proved at the hearing, or to assess the strength of the evidence which may ultimately be adduced to establish the asserted facts. 27 Accordingly, a mere assertion that laws and customs are traditional will not be sufficient. In Gudjala People No 2 v Native Title Registrar (2009) 182 FCR 63; [2009] FCA 1572, Dowsett J explained (at [29]) that: In assessing the adequacy of a general description of the factual basis of the claim, one must be careful not to treat, as a description of that factual basis, a statement which is really only an alternative way of expressing the claim or some part thereof. In my view it would not be sufficient for an applicant to assert that the claim group's relevant laws and customs are traditional because they are derived from the laws and customs of a pre-sovereignty society, from which the claim group also claims to be descended, without any factual details concerning the pre-sovereignty society and its laws and customs relating to land and waters. Such an assertion would merely restate the claim. There must be at least an outline of the facts of the case. (Emphasis added) 28 To satisfy the condition in s 190B(5)(a) of the NTA, it will be sufficient if the applicant demonstrates that: (a) "the claim group presently has an association with the area, and the claim group's predecessors have had an association with the area since sovereignty or European settlement" (see Gudjala People #2 v Native Title Registrar [2007] FCA 1167 (Gudjala 2007) at [52] per Dowsett J); (b) "there is an association between the whole group and the area, although not all members must have such association at all times" (see Gudjala 2007 at [52] per Dowsett J); and (c) "there is an association with the entire area claimed, rather than an association with only part of it or 'very broad statements', which have no 'geographical particularity'" (see Martin v Native Title Registrar [2001] FCA 16 (Martin) at [26] per French J and Corunna v Native Title Registrar [2013] FCA 372 at [39] per Siopis J). 29 As for the condition in s 190B(5)(b) of the NTA, it will be sufficient if the applicant demonstrates that: (a) "the laws and customs have their source in a pre-sovereignty society and have been observed since that time by a continuing society such that they can be considered 'traditional'" (see Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422; [2002] HCA 58 and see also Gudjala 2007 at [66] per Dowsett J); and (b) "there be identified a society of people living according to a system of identifiable laws and customs, having a normative content, which existed at the time of sovereignty (see Gudjala 2007 at [65] per Dowsett J). 30 The condition in s 190(5)(c) of the NTA concerns the traditional laws and customs which answer the description set out in s 190B(5)(b). Accordingly, if s 190B(5)(b) is not satisfied, then there can be no satisfaction of the condition in s 190B(5)(c) (Martin at [29] per French J). 31 In Doepel, Mansfield J characterised the nature of the task imposed on the Registrar by s 190B(6) in the following terms (at [16]): ... it is noteworthy that s 190B(6) requires the Registrar to consider whether "prima facie" some at least of the native title rights and interests claimed in the application can be established. By clear inference, the claim may be accepted for registration even if only some of the native title rights and interests claimed get over the prima facie proof hurdle. Indeed it may be that the Registrar, upon being satisfied that some of the native title rights and interests claimed can, prima facie, be established, might not apply that evidentiary test to each of the claimed native title rights and interests. (Emphasis added) 32 Finally, as for s 190B(7), Mansfield J outlined in Doepel how that provision imposed a different task upon the Registrar than that stipulated by s 190B(5). He said (at [18]): ... It does require the Registrar to be satisfied of a particular fact or particular facts. It therefore requires evidentiary material to be presented to the Registrar. The focus is, however, a confined one. It is not the same focus as that of the court when it comes to hear and determine the application for determination of native title rights and interests. The focus is upon the relationship of at least one member of the native title claim group with some part of the claim area. It can be seen, as with s 190B(6), as requiring some measure of substantive (as distinct from procedural) quality control upon the application if it is to be accepted for registration. (Emphasis added) 33 I turn now to the import of the additional evidence contained in the two affidavits mentioned above. Before summarising that evidence, it is appropriate to provide some information about the deponents to those two affidavits. 34 As already mentioned above, Mr McLennan is a member of the Jangga Applicant. The material before the delegate contained a report prepared by Mr Daniel Leo, an anthropologist, for the purposes of the Jangga People determination mentioned earlier in these reasons (see at [6] above). That report was prepared in April 2011. In it, Mr Leo made the following observations about Mr McLennan's senior status as a Jangga person and his detailed knowledge of the laws and customs of the Jangga People: … Colin and Marie McLennan are two of 16 children born to Dorothy McLennan (nee Anderson), a direct descendants [sic - descendant] of apical ancestor Charlie Tiers through three generations of women, namely, Maude Clarke nee Tiers then Lorna Anderson nee Clarke and lastly, Dorothy Maud McLennan nee Anderson ... Colin is the oldest son of Dorothy and George McLennan … ... in my view, Colin McLennan is easily the Jangga People's paramount knowledge holder. His knowledge of Yagana (Jangga Country), Jangga history, culture and language is, in my opinion, unparalleled … 35 The deponent to the other affidavit is Dr Phillip Clarke. Dr Clarke has studied and worked as an academic and consultant anthropologist since 1979. In December 2018, he was requested by the Jangga Applicant's lawyers to provide an opinion in relation to the delegate's decision not to register the Jangga People #2 claim. Dr Clarke's opinion is set out in his report which appears as an annexure to his affidavit: "Preliminary Anthropological Report for the Jangga People #2 Application". 36 In its submissions in this application, the Jangga Applicant provided the following helpful summary of the contents of Dr Clarke's report: 28. In chapter 1 of the report, Dr Clarke discusses at length Alfred E Howitt's studies of regional class marriage systems in and around the claim area in the later part of the 19th century in which Howitt found that there were 13 bura groups who exchanged in and around both the claim area and the Jangga People determination area including the Munkibura, Bingabura, Boanbura, Kumbukabara, Mutabura, Yankibura, Wakelbura, Dorobura and Mutherabura. Based on Howitt's studies Dr Clarke found that: The frequent movement of people, caused by such reasons as marriage, ceremony and foraging, helped to standardise the local speech, with the bura groups involved being part of the one broad language region. From the existence of such complex relationships between the thirteen bura groups listed by Howitt in his marriage exchange table it can be determined that all these groups, and probably others not listed, functioned as a subset of the broad regional society. 29. Dr Clarke's discussion of [Mr] Daniel Leo's connection material for the Jangga determination relevantly includes Dr Clarke's agreement with Mr Leo's opinion that: Taken collectively, this range of information about the tribes and their distribution in and around the [Jangga People determination area] provide the following facts: the country was occupied by Aboriginal people; these people were formed into named groupings that occupied and owned defined tracts of land; in a spatial sense, these groupings were more or less evenly distributed along major watercourses, and as such, watersheds by and large matched the boundaries between such groupings; and that there was a custom to name land-owning groupings after certain plants or animals associated with specific tracts of country, and to use the burra [or bura] suffix to denote such names. 30. Dr Clarke's [sic - Clarke] then applies various 19th century ethnographers' and Mr Leo's finding to the claim area, concluding that: From my consideration of the ethnographic data provided earlier in this chapter it is my opinion that it is reasonable to conclude that in the Biri Gubba regional culture, within which the Jangga People's predecessors* were a part, traditional rights to land were determined by membership to a bura group. As part of the system of customs and laws in existence at sovereignty, those rights passed from one bura group to another as they amalgamated, or when one group succeeded to another that had died out. This finding is based upon the evidence provided by the correspondents who worked with the scholars Howitt and Curr… The exact boundaries of the broad regional culture are difficult to determine, although it is clear that clusters of bura groups based both within and on all sides of the Determination Area and the Claim Area formed subsets within it and that they shared many cultural attributes, such as language and ceremony… * In Section 1.2.3 of this report, I conclude, as did Mr Leo above (Section 1.1.9), that as a group the Jangga People come about through the coalescing of bura groups, through a process of succession which had been described by Howitt (Section 1.1.4) and is supported by anthropological models. 31. Finally in chapter 1, Dr Clarke discusses models of succession between bura groupings, particularly in the context of contact era conflict and de-population, in which persons with secondary rights to a bura area may "take over" that area in the event that the previous bura group no longer had an effective membership: In Chatfield's 1875 account, the taking over of the Yuckaburra (Yukkaburra), as the 'original stock,' by other bura groups sometime prior to 1862 (Section 1.1.3; Table 2) took place early enough for this to be considered to have been part of a traditional practice of succession in pre-effective sovereignty times. As shown by the ethnographic scholar Howitt (Section 1.1.4), this practice of succession for bura group country areas in the vicinity of the Claim Area continued after European settlement commenced. After effective sovereignty, the rights to country areas within the Claim Area were still determined by descent, but these rights were transferred to members within a subset of the broad regional society group that was comprised of the descendants of the closely affiliated bura groups. This meant that rights to country areas possessed by bura groups in the vicinity of the Claim Area that no longer had effective membership, were subsumed by the larger group, in this case to be ultimately referred to as the Jangga people, who were also comprised of descendants from neighbouring bura groups who now held these rights... The model of succession described by Dr Palmer and Prof. Peter Sutton above indicates that in north central Queensland the succession of a country area by a surviving bura group was justified by the existence of secondary rights through such things as ceremonial links between focal sites linking the country areas and the relationships established by the marriage exchange system. Since the marriage exchange system resulted in the movement of wives across the region containing both the Claim Area and the Determination Area (Section 1.1.4; Fig.7), succession took place regardless of the proximity of the country involved. This implies that individuals of the succeeding bura group would not necessarily have had previously possessed a substantial physical connection to the succeeded land they had gained. Therefore, it was not necessary for members of the surviving bura group to physically move into and live on the extinct group's land in order to succeed to it and become its Traditional Owners. The surviving group nevertheless became responsible for the former bura group's land and subsumed all the traditional rights to that land and joined them with their own. 32. In chapter 2, Dr Clarke discusses the claim group's apical ancestors and assesses the historical record to locate them both in terms of bura group membership and in relation to the claim area. In summary, Dr Clarke finds the following in relation to each of the claim group's apical ancestors: (a) King Billy and Queen Clara: (i) King Billy was a prominent member of the Mungooburra (Munkibura) group associated with the northern end of the claim area; (ii) King Billy may have had connection with Mootburra (Mutabura) group in the south-west of the claim area; and (iii) Queen Clara had affinal rights to Mungooburra (Munkibura); (b) Pompey Earl, Albert Twist, Charlie Pinkipie & Judy Pinkipie were each possibly members of or at least held rights to the Wakelbura area in the south-east of the claim area; (c) Mick Havilah and Johnny Havilah were possibly members of the Mungooburra (Munkibura) group associated with the northern end of the claim area; (d) Charlie Tiers possibly had affinal rights to the Mungooburra (Munkibura) group associated with the northern end of the claim area; and (e) Dick Cook & Lilly Cook and Dick Hegarty/Dinduk were descendants of the Jangga People but without known connection with a bura group in the claim area. 33. Dr Clarke opines: In summary, it is my opinion that most of the Apical Ancestors potentially held traditional rights to land within the Claim Area. All of their descendants, as part of what Mr Leo has described as an 'enlarged bura grouping' known as the Jangga people, have held connections to the Claim Area as Traditional Owners. 34. Dr Clarke's conclusions are as follows: The research for the current report has confirmed that all the Apical Ancestors for the current claim are Jangga People, which is consistent with the outcome of the Jangga People Determination. It is a further finding of this report that at sovereignty most of these Ancestors are likely to have exercised traditional rights to land in some part of the Claim Area, on the basis of their blood links and their affinal relationships to members of bura groups with country areas across the region. In the case of King Billy and Queen Clara, it can be said with certainty that these Apical Ancestors were senior members of bura groups with country areas located within the Claim Area. Descendants of all these Apical Ancestors have possessed rights to the Claim Area, having merged into a single group known as the Jangga People, whose existence as a cultural group representing the interests of a subset of bura groups can be traced to at least the 1920s, as shown by the fieldnotes of anthropologist Tennant-Kelly discussed in this report (Section 1.1.6). 35. Finally, Dr Clarke has included a map overlaying the bura groupings of which the Jangga apical ancestors were members (boundaries identified by Howitt) with the claim map, providing a visual representation of the bura groupings' and therefore the apical ancestors' connection to the claim area. (Italics in original; footnotes omitted) 37 Turning, then, to Mr McLennan's affidavit, it is important, first, to note that that affidavit builds upon the evidence contained in eight affidavits that formed part of the materials before the delegate. In its submissions, the State provided a helpful summary of those materials. As well as Mr McLennan's affidavits, they included the Jangga People #2 application and Mr Leo's report mentioned above. That summary is as follows: 2. Schedule F of the amended native title determination application filed 29 August 2018 provides a general description of the factual basis for the claimant application, as follows: 4. The native title claim group comprises Aboriginal People who are descended from ancestors who comprised an identifiable community; and who: (a) had an affiliation with Jangga country, including a spiritual affiliation, which included the application area and have maintained this connection with the application area; (b) held and exercised native title rights and interests in the application area in accordance with acknowledged laws and observed customs and have maintained this holding an exercise of native title rights and interests in the application area; and (c) passed on their language, their spiritual affiliation with the application area, their laws and customs, and their native title rights and interests, in accordance with those laws and customs of their descendants. 5. The native title claim group: (a) has an association with Jangga country, including a spiritual affiliation, which country includes the application area and the Jangga People maintain this connection with the association with the application area; (b) have inherited, hold and exercise the native title rights and interests described in Schedule E in the application area in accordance with traditionally acknowledged laws and traditionally observed customs and have maintained this holding and continue to exercise those native title rights and interests in the application area; (c) pass on their spiritual affiliation with the application area, their traditional laws and customs and their native title rights and interests, in accordance with those traditional laws and customs, to their descendants. 3. The apical ancestors associated with the Jangga People #2 Claim are as follows: (a) Charlie Tiers; (b) Dick Hegarty, also known as Dinduk; (c) Pompey Earl; (d) Mick Havilah (also known as Mick Cotherstone) or his brother Johnny Havilah; (e) Albert Twist; (f) Dick Cook and his wife/partner Lilly Cook; (g) Charlie Pinkipie and his wife/partner Judy Pinkipie; or (h) Billy (also known as King Billy) and his wife/partner Clara (also known as Queen Clara). 4. The lineages of each apical ancestor are set out in the Leo Connection Report that was prepared for the Jangga Determination. 5. The evidence before the Delegate in relation to the factual basis for the claimed native title can be summarised as follows: (a) Dr Leo says that Jangga country is likely to extend west of the determined area and this area is defined by geographical markers and locations clearly within the boundaries of the area covered by the Jangga People #2 Claim; (b) in the evidence provided for the Jangga Determination, claimants depose to the full Jangga area extending westwards from the western boundary line to the Great Dividing Range, and to the southwest along the Belyando River to Surbiton Station, and to the southeast to just north of Blair Athol; (c) claimant, Mr Colin McLennan, says that he and members of his family, worked on approximately 36 pastoral properties on, and proximate to, the Jangga People #2 Claim area, including Mirtna, Natal Downs, Taemas and Longton, to name a few. Mr Colin McLennan's brother, Mr Leslie McLennan, worked on approximately 14 pastoral properties on, and proximate to, the Jangga People #2 Claim area, including Nosnillor, Bruslee, Pagingo and Natal Downs; (d) claimants, Mr Colin McLennan and his sister, Ms Marie Wallace, recall that as children their grandmother, Nanna Lorna Clarke, took them on trips to the Jangga People #2 Claim area, such as to Natal Downs, Taemas, Jumba Station, Britannia, Harvest Home and Caerphilly. On those trips, Nanna Lorna Clarke showed her grandchildren artefacts and native wells, among other things; (e) Mr Colin McLennan provides evidence about certain locations in the Jangga People #2 Claim area, including (among others) Lake Gailee and Lake Buchanan; (f) Mr Colin McLennan says that Jangga is the name of a mussel found on Jangga country, and these mussels extend to the Campaspe River and tributaries of the Suttor River which is located within the Jangga People #2 Claim area; (g) Mr Colin McLennan provides evidence in relation to the old Murri pads (walking trails), ancestral stories including in relation to spirits in the area, and hunting kangaroos in Torrens Creek; (h) Mr Colin McLennan describes Jumba Station as having stones [sic - stone] circles used for marriage ceremonies, although those stones [sic - stone] circles have now been destroyed; (i) Mr Colin McLennan provides evidence about traditional tools used in Jangga country, primarily for hunting and fishing purposes; (j) Mr Colin McLennan says that Jangga People have been involved in cultural heritage projects in the Jangga People #2 Claim area in recent years namely around Charters Towers, Rocky Downs Station and the Gregory Development Road. [The State notes that although the Delegate says that '[t]he extent to which these areas fall within the Jangga People #2 Claim area is not clear', Mr McLennan deposes to Rocky Downs Station being located within the Jangga People #2 Claim area]. (k) Mr Colin McLennan says that when he conducted cultural heritage surveys at Spring Creek, Pajingo, Slogan, Pallamana, Harvest Home and Rocky Downs, he found native wells, remains of big and small camp sites, fireplaces and different types of stone artefacts; and (l) claimant, Mr Noel McLennan, trained as a cultural heritage officer, and consequently worked in the claim area, and discovered, among other things, sacred sites. (Footnotes omitted) 38 The additional material provided in Mr McLennan's further affidavit above was summarised in the Jangga Applicant's submissions, as follows: (d) firstly, it identifies a further 41 references to specific geographical locations within the claim area and discusses the connections of the various members of the claim group to those specific areas; (e) secondly, it annexes a table of 85 "Referenced Areas of Association" to specific geographical locations throughout the claim area …; and (f) thirdly, is [sic - it] annexes a "Jangga People's Association with the Claim Area" map onto which the location of each of the 85 referenced areas of association have been marked, providing a visual representation of the location of each of those areas across the expanse of the claim area. (Footnotes omitted) 39 According to the Jangga Applicant's submissions, the "Referenced Areas of Association" table mentioned in this summary includes the following references to sites, claim group members and other presently pertinent information: (a) 29 references to sites of cultural heritage significance to the claim group; (b) 11 references to sites where there is evidence of traditional use of resources by members of the claim; (c) 10 references to sites of particular spiritual attachment to claim group members; (d) 4 references to claim group creation story sites; (e) 64 references to materials regarding claim group members' connection to country … 40 And further: (a) 60 references to members of the claim group acknowledging traditional laws and observing customs that give rise to native title rights and interests in the claim area; (b) 29 references to sites where claim group members acknowledge a connection to or have taken steps to protect sites of cultural heritage significance; (c) 11 references to sites where there [sic - the] claim group members have taken and used natural resources; (d) 10 references to sites where claim group members acknowledge or have passed on information regarding the spiritual attributes of the claim area; and (e) 4 references to sites where claim group members are aware of creation stories with each reference geographically located within the claim area and shown on the Jangga People's Association with the Claim Area map. (Footnote omitted) 41 In response to the Registrar's delegate's statement that: (a) the Jangga Applicant's material "pertains largely to the association of the descendants of apical ancestor Charlie Tiers"; and (b) "the factual basis supporting continuing activity and association with the whole of the Jangga #2 area is limited to the evidence of a very small number of persons", in his affidavit, Mr McLennan refers to more than 64 persons in total, many of whom are predecessors of current claim group members and all of whom are said to be members of the claim group as descendants of the Jangga apical ancestors. Those persons include: Albert Butterworth Fred Tiers Major Mitchell Albert Roan George Barker Marie Wallace Arthur McLennan George McLennan Mick Cotherstone Aunty Alice Ginni/Jinni [Tiers] Muttaburra Joe Aunty Kate Granny Maud Nanna Lorna Clarke Aunty Liza Halen McLennan Noel McLennan Barney Anderson Hector Twist Noel McLennan (Jnr) Bob Roberts Ian McLennan Old Bun Cargoon Bob Jack McLennan Owen Wayne McLennan Charlie Budby Jack Shepherd Paddy Brady Charlie Gallagher ("Sambo") Jack Tiers Pat/Paddy/Patty Daly Charlie Roberts James Larry Pat McLennan Charlie Tiers Jeff Budby Queensland Roy Claude Freeman Jimmy Anderson Ronnie Budby Colin McLennan Jock McLennan Sandy Tiers Darren McLennan Johnny Hoppy Sela McLennan Donald Tiers Lance Cotherstone Sharper Woodhouse Emily Turkey Leon McLennan Tommy Little Eric McLennan Les Cotherstone Uncle Duke Frank Packer Leslie James Uncle Jack Frank Tiers Leslie McLennan Wally Saunders 'Woggie' Kennedy.

42 Based upon the evidence in the two affidavits above, both the Jangga Applicant and the State submitted that it was open to the Court to conclude that the totality of the evidence now before the Court provides a sufficient factual basis to support the assertions that: (a) the claimants and their predecessors, as a whole, have had an association with the entire area the subject of the Jangga People #2 Claim since European Settlement (s 190B(5)(a)); and (b) there exist traditional laws acknowledged by, and traditional customs observed by, the claimants that give rise to the claim to native title rights and interests (s 190B(5)(b)). 43 Furthermore, they both submitted that, having regard to the totality of the evidence now before the Court, it is open to the Court to be satisfied that: (a) "the factual basis is sufficient to support the assertion that the claim group have continued to hold the native title claimed in accordance with traditional law and custom (s 190B(5)(c))"; (b) "prima facie, at least some of the native title rights and interests claimed in the application can be established (s 190B(6))"; and (c) "at least one member of the claim group currently has, or previously had, a traditional physical connection with part of the area of land and waters covered by the application (s 190B(7))". 44 Finally, they submitted that it is open to the Court to conclude on the totality of the evidence now before the Court that the conditions in s 190B(5) to s 190B(7) of the NTA have been satisfied.

CONCLUSION 45 Having examined the relevant parts of the delegate's decision and the additional evidence summarised above, I accept the contentions of the Jangga Applicant and the State above and have come to the various conclusions described therein. It follows that I consider that the Jangga People #2 claim should now be accepted for registration on the Register of Native Title Claims. Accordingly, the orders will be:

1. The decision of the delegate of the Native Title Registrar dated 16 November 2018 is set aside.
2. The Native Title Registrar accept the claim in proceeding QUD387/2018 for registration. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.