Whether the native title group was described sufficiently - Ground 1(a)
11 In ground 1(a) of their Grounds of Application, the applicants claim that the Registrar erred in deciding that the persons in the claim group were not described sufficiently clearly so that it could be ascertained whether any particular person was within the group. The applicants contend that a detailed description was provided of the means by which a person was identified as a member of the group.
12 In their re-amended native title application dated 2 March 1999 the applicants identified the members of their native title claim group as:
"The Miriuwung Gajerrong people including the named claimants being Ben Ward, John Toby, Jimmy Ward, Ronnie Carlton, Jeff Janama, Button Jones, Ben Barney, Dodger Carlton, Kim Aldus, Murphy Simon, Sheba Dignari, Joe Lissadell, Peter Newry, Toby Banmar, Ronnie Yundun, and Chocolate Thomas, also including those people who are descended from the traditional owners of the land and waters claimed at the time of sovereignty, including those considered within the native title claim group by way of birth, adoption, marriage or other traditionally recognised method of inclusion who today identify themselves as Miriuwung or Gajerrong.
Further information describing the members of the claim group is set out in Attachment 3 referred to in Schedule T."
13 Attachment 3 (referred to above) was a thirteen page document dated 17 July 1998 prepared and signed by Mr P Kennard who appeared as counsel for the applicants at the hearing of this application. It was entitled "Attachment 3: Report on Claimants' Response to Criteria Indicating an Ongoing Traditional Connection with Land". I set out below some of the relevant passages of that document:
"1. Specific identification of claimants
The claimants are Miriuwung and Gajerrong peoples. They comprise two closely related peoples. Their present closeness is based on geographic proximity of their traditional territories, historical ties, intermarriage, closeness of language and shared laws and customs. There is no requirement in the Native Title Act or common law for the claimants to prove each and every individual member of the claimant group. All that is required is that the claimants prove the existence of the Miriuwung and Gajerrong people/community. The "determination of whether a particular person is a member" is a matter entirely for the group itself. It is not for the NNTT, a Court or any Respondent. What is important is that there exists means by which individuals are accepted and recognised as members of the claimant group. In the present case, such means include:
(1) descent from a Miriuwung or Gajerrong ancestor/s;
(2) conception, birth and residence in Miriuwung and Gajerrong territory;
(3) language; and
(4) identification by others as Miriuwung and/or Gajerrong.
2. An established cohesive social group with common identity which constitute an organised and identifiable community
Claimants identify themselves as members of the Miriuwung and Gajerrong groups. Some may also identify as "mixed" Miriuwung/Gajerrong. They distinguish themselves from other neighbouring groups such as Jaru, Gija, Nyarinman and Jaminjoong."
14 There then followed a reference to evidence in relation to the Miriuwung and Gajerrong peoples which was said to disclose "… that they are closely bound together as a people and identify as a people …" having regard to features, values or experiences of the type which were set out in a list of some seven items. They included biological/social descent ties, kinship ties, a shared language, shared laws and customs and shared ritual and religious knowledge.
15 Later in the document there was an assertion that the claimants could "provide" biological descent from Aboriginal people who were in the occupation of the area claimed at the time of sovereignty. A list naming and describing nine such persons were set out. It should be noted that this list was referred to as only providing some examples.
16 The Registrar's delegate acknowledged that s 190B(3) of the Act did not require that, at the time of consideration for registration, she should be able to identify every person who belonged to the native title claim group. But she referred to the specific requirement of s 61(4)(b) [which is mirrored in s 190B(3)(b)] that the application must describe the persons in the native title claim group sufficiently clearly so that it can be ascertained whether any particular person is in that group.
17 The delegate accepted, as a matter of course, that there was no uncertainty about the persons named as applicants being included in the claim group. She expressed the view that the extended description in the application itself, whether considered in terms of each individual element or together, was too uncertain to meet the requirement of a "sufficiently clear" description. Attachment 3, so the delegate held, did not remedy those uncertainties. The delegate identified various problems with Attachment 3, including: