Rubibi Community v State of Western Australia (No 5) - [2005] FCA 1025

FEDERAL COURT OF AUSTRALIA
Rubibi Community (No 5) v State of Western Australia [2005] FCA 1025
NATIVE TITLE – competing claims for communal and group native title rights and interests – whether native title rights and interests in the respective claim areas are possessed by members of the claimant community or by members of the competing claimant group who comprise one of the clans which forms part of the claimant community
Native Title Act 1993 (Cth) ss 223, 225 and 253
Rubibi Community v State of Western Australia (No 3) (2002) 120 FCR 512 - cited
De Rose v State of South Australia (No 2) [2005] FCAFC 110 - applied
Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] 214 CLR 422 - applied
De Rose v State of South Australia (2003) 133 FCR 325 - applied
Gumana v Northern Territory of Australia [2005] FCA 50 - cited
Rubibi Community v Western Australia (2001) 112 FCR 409 - cited
Sampi v State of Western Australia [2005] FCA 777 - cited
State of Western Australia v Ward (2002) 213 CLR 1 - applied
WEH Stanner, ‘The Yirrkala Case : Some General Principles of Aboriginal Land-Holding’, paper prepared for the purposes of the land claim in Milirrpum v Nabalco Pty Ltd (1971) 171 FLR 141 and presented at the AIATSIS Seminar, February 1969
A Rumsey, ‘Language and Territoriality in Aboriginal Australia’, Language and Culture in Aboriginal Australia (M Walsh and C Yallop eds), Aboriginal Studies Press, Canberra, 1993
FRANK SEBASTIAN AND OTHERS (SEE SCHEDULE) v STATE OF WESTERN AUSTRALIA AND OTHERS (SEE SCHEDULE)
WAG 6006 and 6238 of 1998
MERKEL J
29 JULY 2005
MELBOURNE (HEARD IN BROOME)

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAG 6006 and 6238 of 1998

BETWEEN:

FRANK SEBASTIAN AND OTHERS
(See Schedule)
APPLICANTS

AND:

STATE OF WESTERN AUSTRALIA AND OTHERS
(See Schedule)
RESPONDENTS

JUDGE:

MERKEL J

DATE:

29 JULY 2005

PLACE:

MELBOURNE (HEARD IN BROOME)

REASONS
1.        Introduction  2 - 9
2.        The Law  9 - 21
3.        The Yawuru witnesses  22 - 25
(a)The Bugarrigarra  25 - 27
(b)‘The law’  27 - 35
(c)Rai and birthplace  35 - 38
(d)Yawuru language  38 - 41
(e)‘Skin’, kinship, malinyanu and marriage rules  41 - 45
(f)Stories, songs, dances and ceremonies  45- 48
(g)‘Bush names’, gumbali names, burial and avoidance of the names
of deceased people  49 - 51
(h)Hunting and use of ‘bush foods’ and ‘bush medicine’  51 - 53
(i)‘Speaking for country’ and ‘looking after country’  53 - 58
(j)‘Increase sites’  58 - 59
(k)Permission to access country  59 - 63
(l)Genealogies  63 - 66

4.        The Walman Yawuru witnesses  66 - 91
5.        Anthropological evidence  91 - 93
(a)‘The law’  93 - 96
(b)Rai and other totemic associations  97 - 99
(c)Language and boundaries  100 - 101
(d)Membership of the Yawuru community  102 - 107
(e)Clan estates  107 - 135

6. Conclusions 136 - 142
1. Introduction

The present matter concerns two competing claims for native title in respect of land and waters in and around Broome in the State of Western Australia. The first claim (‘the Yawuru claim’), which is made by Frank Sebastian, Francis Djiagween, Patrick Dodson, Joseph ‘Nipper’ Roe, Felix Edgar, Joseph Roe, Elsie Edgar, Thelma Saddler, Cecilia Djiagween, Teresa Roe, Richard Hunter and Michael Corpus (‘the Yawuru claimants’) on behalf of the Yawuru community, is for communal native title rights and interests in respect of the land and waters (‘the Yawuru claim area’) which, subject to certain exclusions, may generally be described as follows:
‘The area claimed is in the State of Western Australia in the West Kimberley Region. The boundaries are as follows:
Commencing at the eastern most northeastern corner of Pastoral Lease 3114/499 (Roebuck Plains) and extending generally southerly and generally westerly along boundaries of that Pastoral Lease to the eastern most eastern boundary of Pastoral Lease 3114/635 (Thangoo); Thence generally southerly and generally westerly along boundaries of that Pastoral Lease to the western most southwestern corner of that Pastoral Lease; Thence west to the Mean High Water Mark; Thence generally northeasterly along that Mean High Water Mark to Longitude 122.085986 East; Thence northerly to the Lowest Astronomical Tide (LAT) at Latitude 18.326161 South Longitude 122.086094 East; Thence generally northerly, generally easterly, again generally northerly, generally westerly and again generally northerly along that Lowest Astronomical Tide to Latitude 17.763873 South; Thence easterly to Latitude 17.763845 South Longitude 122.220035 East; Thence southeasterly to a western corner of Pastoral Lease 3114/499 (Roebuck Plains); Thence generally easterly along the northern boundaries of that Pastoral Lease back to the commencement point.’
The rights and interests claimed by the Yawuru claimants are the unextinguished rights and interests of possession, occupation, use and enjoyment, as against the whole world, of the land and waters in the Yawuru claim area on the landward side of the high water mark. In areas of the Yawuru claim area where a claim for exclusive possession is not made the Yawuru claimants claim the following unextinguished rights and interests:
(a)the right to speak for the land and make decisions about the use and enjoyment of the land and waters by themselves and others;
(b)the right to live on the land;
(c)the right to access, move about and use the land;
(d)the right to hunt and gather on the land and in the waters;
(e)the right to engage in spiritual and cultural activities on the land and in the waters;
(f)the right to access, use and take any of the resources of the land (including ochre) and control the access of others to the land and its water and resources;
(g)the right to refuse, regulate and control the use and enjoyment of others of the land and its resources;
(h)the right to care for, maintain and protect the land and waters, including places of spiritual or cultural significance; and
(i)the right to access and use the water of the land.
In relation to the land on the seaward side of the high water mark, but not beyond the lowest astronomical tide and the sea above it (‘the intertidal zone’), the following unextinguished rights and interests are claimed:
(a) the right to access, move about in and on and use and enjoy the intertidal zone;
(b)the right to hunt and gather in and on the intertidal zone, including for dugong and turtle;
(c)the right to access, use and take any of the resources of the intertidal zone (including the fresh water); and
(d)the right to maintain and protect the intertidal zone, including its places of spiritual or cultural significance.
The Yawuru community is generally defined as those Aboriginal people who are descendants of:
‘…Nyobing Babere, Chimbere Sitocay, Aloysius Louis Dolby, Jirawina, Jack and Pollyanna Mangain, Lija (wife of Phillip O’Brien Taylor), Nyilandin, Joseph Mary, Paddy Djiagween, Lucy Marcella Roe, Mary Minyal, Cecilia Ngangon, Nyingula, Annie Mawunga, Milangka, Lena Charlie, Lucia “Lija” (daughter of Bornal and Gurdan), Minbal Ester, Philomena Carter, Aubrey Kelly Edar, John Two fingers, Mary Budjinka, Yungula (first wife of George Harriot Roe), Yungula (second wife of George Harriot Roe), Tommy Roe “Guminy”, Dorothy Kelly, Lydia Kanagai, Solong Archill, Jiriny, Dockan Harry Minbal, Maggie Kanado (Kangode), Lucy Warrdarr, Philomena “Polly” Vincent (nee Pedro) and Paddy Roe.’
The competing claim (‘the Walman Yawuru claim’), which is made by Margaret Robinson, Edward Roe and Peter Matsumoto (‘the Walman Yawuru claimants’) on behalf of the Walman Yawuru clan, is for group native title rights and interests in respect of the land and waters (‘the Walman Yawuru claim area’) which, subject to certain exclusions, may generally be described as follows:
‘The area claimed is in the Shire of Broome, in the State of Western Australia. The boundaries are as follows:
The following is the technical description of the traditional lands and waters of the Walman Yawuru people.
The southernmost land point of the Walman Yawuru traditional lands is the point where the southern bank of the tidal flats at 434350E 7999000N reaches the Indian Ocean. From here the boundary follows a generally south easterly direction along the southern bank of the creek that forms these mud flats to the south eastern edge of the coastal silt plains, which flank the inland scrub and pindan plains. This point is at 437100E 7995650N. From this point, the boundary stretches in a generally north easterly direction along the inland edge of the coastal silt plains, past Number 3 Bore and Number 4 Bore, to turn in a generally easterly direction past Number 5 Bore to a point at approximately 448200E 7998000N and turn again in a generally northerly direction to pass Number 6 Bore to a point north west of Chain Pump Bore at approximately 450000E 8005550N. From this point, the boundary stretches in a generally easterly direction along the edge of the coastal silt plains to Coomacop Bore, from where it turns to extend in a generally north westerly direction past Cow Bore to a point at approximately 443300E 8022100N.
From this point it stretches in a generally westerly direction to a point near the north western boundary of Roebuck Plains at 247500E 8020480N, from where it angles slightly to the south of east to pass the old Broome rubbish tips and turn generally south along the western flank of Dampier Creek at 421000E 8019650N. The boundary then follows this generally southerly orientation to cross the Broome Highway to the east of Broome Airport and reach the coast of Roebuck Bay slightly to the west of Mangrove Point at 418850E 8012550N.
The Walman Yawuru traditional waters stretch from this point near Mangrove Point to the point of commencement at 434350E 7999000N and includes the coastal waters that cover the inter-tidal zone between the high-water mark and the lowest astronomical tide between the point of commencement and the point of termination.
…
The Walman Yawuru claimants also claim traditional custodianship of the traditional lands and waters formerly of the Minyirr people, the immediate western neighbours of the Walman Yawuru people.
The most easterly point of the traditional lands formerly of the Minyirr people is at the coast of Roebuck Bay slightly to the west of Mangrove Point at 418850E 8012550N, where these traditional lands abut the traditional lands of the Walman Yawuru people.
From here, the boundary stretches in a generally northerly direction along the western boundary of the Walman Yawuru lands to the vicinity of the old Broome rubbish tips at approximately 421000E 8019650N. From here, the boundary stretches in a generally south westerly direction, to pass through Station Hill and reach the coast at Cable Beach at approximately 416040E 8018000N. The traditional waters formerly of the Minyirr people are the coastal waters that cover the inter-tidal zone between the high-water mark and the lowest astronomical tide between the point of commencement and the point of termination.’
The Walman Yawuru claim area is within the Yawuru claim area.
The rights and interests claimed by the Walman Yawuru claimants are essentially the same as those that are claimed by the Yawuru claimants, save that they only relate to the Walman Yawuru claim area and are limited to rights and interests possessed by Walman Yawuru clan members. The Walman Yawuru clan is defined as the Aboriginal people who are descendants of Nyobing Babere and Chimbere Sitocay, both of whom are named as apical ancestors of the Yawuru claimants. One of their descendants, Michael Corpus, who is a Yawuru claimant, is said to have been banished from the Walman Yawuru clan for serious breaches of their customary laws and, as a consequence, he and his descendants have been excluded from being members of the Walman Yawuru clan.
After the Walman Yawuru claimants decided to oppose the claims of the Yawuru claimants, the Walman Yawuru claimants were removed as applicants and were joined as respondents. The joinder was made so that the Court could determine all disputes between the competing claimants as to the existence, nature and extent of the native title rights and interests being claimed by both the Yawuru and the Walman Yawuru claimants (see Rubibi Community v State of Western Australia (No 3) (2002) 120 FCR 512 at 517 [18]). In their capacity as respondents, the Walman Yawuru claimants opposed the Yawuru claimants’ claim on the basis that native title in the Yawuru claim area was a clan, rather than a communal, native title. However, the Walman Yawuru claimants claimed that, although they were respondents, they were nonetheless entitled to a determination under s 225(c) of the Native Title Act 1993 (Cth) (‘the NTA’) that recognised the native title rights and interests of the Walman Yawuru clan in the Walman Yawuru claim area. Since the hearing of the Yawuru claimants’ claim, the Walman Yawuru claimants filed a separate application in the Court for native title in respect of the Walman Yawuru claim area. That application is presently before the National Native Title Tribunal.
If the Walman Yawuru contention - that native title in the Yawuru claim area is a clan native title, rather than a communal native title - is correct, that would result in any native title rights and interests in the Walman Yawuru claim area being possessed by Walman Yawuru clan members in their capacity as Walman Yawuru clan members. It would then follow that the Yawuru claim for native title rights and interests must be refused as it is premised on the contention that native title in the Yawuru claim area is a communal native title that is people-based, rather than clan-based. Clan native title rights and interests may be contrasted with communal native title rights and interests which are possessed by members of the community in their capacity as community members. The case has been contested between the competing Yawuru and Walman Yawuru claimants, correctly in my view, on the basis that the communal and group (i.e. clan) native title rights and interests that are being claimed are incompatible. It follows that, if the Court concludes that the Yawuru claimants’ native title is a communal native title, rather than a clan native title, the Walman Yawuru claim for group native title rights and interests must be refused as it is premised on a clan native title, rather than a communal native title.
A separate claim was made by the Walman Yawuru claimants that they had ‘traditional custodianship’ of the lands and waters of the Minyirr clan (‘the Minyirr claim area’), who were the immediate western neighbours of the Walman Yawuru clan. The basis of the claim was formulated as follows:
‘…in the early years of the twentieth century, the Minyirr people died out. As immediate neighbours, the Walman Yawuru people had, in accordance with traditional law and custom acknowledged by both groups of people, shared knowledge of rituals associated with the land and waters, sacred aspects of the land and means of maintaining the spirituality of the land and water. With the passing of the Minyirr people, their immediate neighbours the Walman Yawuru undertook, in accordance with traditional law and custom, to maintain the spirituality of the traditional lands of the Minyirr people, by continuing the practice of rituals, by visiting and cleaning rai spirit sites and other sacred places and by continuing to harvest the fruits and other products of the land and waters in accordance with traditional law and custom. The Walman Yawuru people continue to maintain and protect the spirituality of the land and waters of their former neighbours, the Minyirr people to the present day and to instruct their children in these matters. That instruction, however, includes teaching that the lands in questions are the lands and waters of the Minyirr people and they can never become the tradition lands and waters of the Walman Yawuru people.’
The rights and interests claimed by the Walman Yawuru claimants in respect of the traditional lands and waters formerly occupied by the Minyirr clan were substantially the same rights and interests they claimed in respect of the Walman Yawuru claim area. As the Minyirr is also a clan of the Yawuru community, and as the Minyirr claim area is within the Yawuru claim area, the Minyirr claim would also fail if native title in the Yawuru claim area is found to be a communal native title, rather than a clan native title.
There were also issues about whether the Goolarabooloo were part of the Yawuru community and whether the Djugan were a clan of the Yawuru community or a native title holding community in their own right. Although members of the Goolarabooloo and Djugan were able to be identified as such there was a dispute about whether they were members of the Yawuru community entitled to hold native title rights and interests in the Yawuru claim area. If the Djugan were found to be a separate community, an additional question arose as to whether the northern parts of the Yawuru claim area were part of the country of the Djugan community, rather than of the Yawuru community. The evidence on those issues was strongly contested. In particular, the State of Western Australia contended that the Djugan were a separate tribe and community and that their country does not form part of the area in respect of which the Yawuru community were entitled to claim native title.
Both the Yawuru and the Walman Yawuru claims were opposed by the State of Western Australia, the Commonwealth and the Western Australian Fishing Industry Council (Inc) (‘WAFIC’). WAFIC’s opposition to the claims was based on its interest in protecting the intertidal zone in the respective claim areas from any native title claims. The Commonwealth’s opposition mainly related to ‘succession’ issues that it claimed arose as a result of the Yawuru and Walman Yawuru claims in respect of the areas associated with the Minyirr and the Djugan. Also, each of those respondents, the Shire of Broome and other parties presented separate cases in respect of extinguishment issues.
At the conclusion of the hearing, the Yawuru claimants and the State of Western Australia requested that the matter be referred to mediation as they claimed there were good prospects of a mediated compromise. The mediation is continuing. However, as the preparation of my reasons for judgment has reached the stage where I can resolve a significant number of the issues relating to the existence and nature of any native title in the respective claim areas I consider it to be in the interests of the parties that I hand down my decision on those issues. Recently, I raised the question of an interim decision with the parties. The general consensus appeared to be that the parties were in favour of such a decision being handed down as soon as possible as it would enable them to limit, and possibly resolve, the remaining issues by mediation. Accordingly, these reasons for judgment will determine whether native title in respect of the Yawuru, Walman Yawuru and Minyirr claim areas is clan-based or people-based.
There remains for future resolution by agreement or determination the further questions of whether the parties that are successful on that issue have established the native title rights and interests they claim to possess in respect of their claim area and, if so, whether any of those native title rights and interests have been extinguished.
2. The Law
The native title rights and interests which the respective claimants seek to be the subject of a determination under s 225 of the NTA are defined in s 223 of the NTA, which provides:
‘Common law rights and interests
(1)The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a)the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b)the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c)the rights and interests are recognised by the common law of Australia.
Hunting, gathering and fishing covered
(2)Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.’

Section 253 of the NTA defines an ‘interest, in relation to land and waters’ to mean:
‘(a) a legal or equitable estate or interest in the land or waters; or
(b)any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:
(i)the land or waters; or
(ii)an estate or interest in the land or waters; or
(c)a restriction on the use of the land or waters, whether or not annexed to other land or waters.’
Section 225 of the NTA provides:
‘A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:
(a)who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b)the nature and extent of the native title rights and interests in relation to the determination area; and
(c)the nature and extent of any other interests in relation to the determination area; and
(d)the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e)to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.’
In De Rose v State of South Australia (No 2) [2005] FCAFC 110 (‘the second De Rose decision’) at [31] and [38]-[39], the Full Court made certain observations about the distinction in s 223(1) between communal, group and individual native title rights and interests:
‘A native title determination can only be made in respect of rights and interests that satisfy each element of the definition in s 223(1) of the NTA. In particular, the rights and interests must be possessed under the traditional laws acknowledged and customs observed by the Aboriginal peoples (s 223(1)(a)). If the traditional laws and customs of the relevant Aboriginal peoples permit only those rights and interests that can be classified as “communal” to be possessed, a claim to “individual” rights and interests will presumably fail. If, however, the traditional laws and customs allow what can be classified as individual rights and interests to be possessed, and the claimant satisfies the other elements of the definition, the claim will presumably succeed. All depends on the body of normative rules of the relevant society which gives rise to rights and interests in land or waters: Yorta Yorta, at [40].
…
It is hardly likely that the traditional laws and customs of Aboriginal peoples will themselves classify rights and interests in relation to land as “communal”, “group” or “individual”. The classification is a statutory construct, deriving from the language used in Mabo (No 2). If it is necessary for the purposes of proceedings under the NTA to distinguish between a claim to communal native title and a claim to group or individual native title rights and interests, the critical point appears to be that communal native title presupposes that the claim is made on behalf of a recognisable community of people, whose traditional laws and customs constitute the normative system under which rights and interests are created and acknowledged. That is, the traditional laws and customs are those of the very community which claims native title rights and interests. By contrast, group and individual native title rights and interests derive from a body of traditional laws and customs observed by a community, but are not necessarily claimed on behalf of the whole community. Indeed, they may not be claimed on behalf of any recognisable community at all, but on behalf of individuals who themselves have never constituted a cohesive, functioning community.
The distinction between group and individual rights and interests (to the extent it matters) is perhaps more difficult to identify. An example of group rights and interests may be those held by a sub-set of a wider community, the traditional laws and customs of which determine who has interests in particular sites or areas. The members of the sub-set may or may not themselves be an identifiable community, but their rights and interests are determined by the traditional laws and customs observed by the wider community. The members of the sub-set might be expected, under the traditional laws and customs, to share common characteristics in relation to certain land or waters, such as rights and responsibilities as the custodians of particular sites. Ordinarily, it might be expected that the “group” holding native title rights and interests would have a fluctuating membership, the composition of which would be determined by the relevant body of traditional laws acknowledged and customs observed.’ [emphasis added]
As stated above, the Yawuru claim is a claim for communal native title rights and interests as it is claimed to be made on behalf of a community of people, namely the Yawuru community as defined in the application. The Yawuru claimants, relying on Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] 214 CLR 422 (‘Yorta Yorta’) at 439 [29], 444-445 [47] and 445 [49], claim that the Yawuru community is a body of persons united in and by its acknowledgment and observance of a body of traditional laws and customs. Those traditional laws and customs are said to constitute the normative system under which the rights and interests claimed are created. The Yawuru claim may be contrasted with the Walman Yawuru claim which is a claim for group native title rights and interests, namely those of the Walman Yawuru clan. Initially, several of the Walman Yawuru witnesses suggested that their claim to native title was based upon their acknowledgment and observance of Walman Yawuru, rather than Yawuru, traditional laws and customs. However the evidence, to which I later refer, clearly establishes that the traditional laws and customs relied upon by the Walman Yawuru claimants were the traditional laws and customs of the Yawuru community. It is also clear from the evidence that the traditional laws and customs observed by any of the clans of the Yawuru community are entirely derivative and are indistinguishable from the traditional laws and customs of the Yawuru community to which the clan belongs. Thus, the native title rights and interests claimed by the Walman Yawuru clan are claimed by the clan members as a sub-set of the wider Yawuru community, the traditional laws and customs of which determine who possesses rights and interests in particular sites and areas.
In De Rose v State of South Australia (2003) 133 FCR 325 (‘the first De Rose decision’) at 377-379 [159]-[166], the Full Court made the following observations about what a claimant community or group must establish in order to satisfy the requirements of s 223(1):
‘The rights and interests must have the three characteristics specified in paras (a), (b) and (c) of s 223(1) of the NTA:
(a)they must be rights and interests which are “possessed under the traditional laws acknowledged, and the traditional customs observed” by the Aboriginal peoples;
(b)the Aboriginal peoples, by those laws and customs, must have “a connection with the land or waters”; and
(c)the rights and interests must be “recognised by the common law of Australia”.
See Ward (HC) at [17]; and Yarmirr at [9].
The inquiry in relation to para (a) may depend on the same evidence as is used to establish connection of the relevant peoples with the land or waters. That is because the connection must be “by those laws and customs”. Nonetheless, s 223(1) requires two distinct inquiries – one as to the rights and interests possessed under traditional laws and customs and the other as to the connection with the land by those laws and customs: Ward (HC) at [18].
The question, in a given case, of whether para (a) is satisfied is a question of fact. It requires the identification of
·laws and customs said to be traditional laws and customs; and
·the rights and interests in relation to land or waters which are possessed under those laws and customs.
See Ward (HC) at [18]. The NTA proceeds on the basis that the rights and interests with which it deals can be possessed under traditional laws and customs: Yorta Yorta (HC) at [40].
The native title rights and interests recognised by the NTA derive from the traditional laws and customs, not the common law: Ward (HC) at [20]; Yorta Yorta (HC) at [37], [45]. The role of the common law is that stated in s 223(1)(c) – that is, the recognition of the rights and interests: Ward (HC) at [20]. It follows that the claimed rights and interests must find their origin in a body of norms or a normative system that existed before the Crown acquired sovereignty over the claimed land: Yorta Yorta (HC) at [38]; Ward (HC) at [84], [85]. However, the norms or normative system need not have the characteristics of a developed European system: Yorta Yorta (HC) at [39]. The rights and interests possessed under traditional laws and customs often will not correspond to common law or European concepts: Yarmirr at [11], [14]. But, as was said in the joint judgment in Yorta Yorta (HC) at [40], this is not to deny
“…the normative quality of the laws and customs of the indigenous societies. It is only if the rich complexity of indigenous societies is denied that reference to traditional laws and customs as a normative system jars the ear of the listener.”
Since s 223(1)(a) uses “and” rather than “or”, there is no need to distinguish between what is a matter of traditional law and what is a matter of custom, provided that the rules which constitute those traditional laws and customs have normative content: Yorta Yorta (HC) at [42]. Nonetheless, because the subject matter comprises rights and interests, the rules which together constitute the traditional laws and customs under which the rights or interests are said to be possessed must be rules having normative content. Observable patterns of behaviour do not necessarily involve rights or interests in relation to land: Yorta Yorta (HC) at [42]. [emphasis added]
Upon the Crown acquiring sovereignty, the normative or law-making systems which then existed could not thereafter validly create new rights or interests. As was said by Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta (HC) at [43]:
“Rights or interests in land created after sovereignty and which owed their origin and continued existence only to a normative system other than that of the new sovereign power, would not and will not be given effect by the legal order of the new sovereign.”
[emphasis in original]
However, their Honours said at [44] that that proposition does not deny:
“the efficacy of rules of transmission of rights and interests under traditional laws and traditional customs which existed at sovereignty, where those native title rights continue to be recognised by the legal order of the new sovereign. The rights and interests in land which the new sovereign order recognised included the rules of traditional law and custom which dealt with the transmission of those interests. Nor is it to say that account could never be taken of any alteration to, or development of, that traditional law and custom that occurred after sovereignty. Account may have to be taken of developments at least of a kind contemplated by that traditional law and custom. Indeed, in this matter, both the claimants and respondents accepted that there could be “significant adaptations” [Yorta Yorta (FC) at 264 [67]]. But what the assertion of sovereignty by the British Crown necessarily entailed was that there could thereafter be no parallel law-making system in the territory over which it asserted sovereignty. To hold otherwise would be to deny the acquisition of sovereignty and as has been pointed out earlier, that is not permissible. Because there could be no parallel law-making system after the assertion of sovereignty it also follows that the only rights or interests in relation to land or waters, originating otherwise than in the new sovereign order, which will be recognised after the assertion of that new sovereignty are those that find their origin in pre-sovereignty law and custom.” [emphasis in original]
The word “traditional” in s 223(1)(a) is apt to refer to a means of transmission of a law or custom from generation to generation usually by word of mouth and common practice. But it follows from Yorta Yorta (HC) (at [46], [47]) that the concept of “traditional” laws and customs carries with it two other elements:
·an understanding of the age of the traditions, in particular a requirement that the origins of the law or custom lie in pre-sovereignty norms; and
·the requirement, flowing from the reference to rights or interests being possessed under traditional laws, that the normative system under which the rights and interests are possessed “has had a continuous existence and vitality since sovereignty”. [emphasis added]
In Yorta Yorta (HC), the joint judgment pointed to the inextricable link between a society, in the sense of a body of persons united in and by its acknowledgement and observance of a body of law and customs, and the law and customs themselves…’
In Gumana v Northern Territory of Australia [2005] FCA 50 (‘Gumana’) at [226]-[228], Selway J observed that the ‘connection’ with the land and waters referred to in s 223(1)(b) may be a spiritual, cultural or social connection.
At 380-381 [173]-[175] of the first De Rose decision, the Full Court considered the impact of European settlement on continuing observance and acknowledgement of traditional laws and customs:
‘Demonstrating the content of pre-sovereignty traditional laws and customs may be especially difficult in cases where the laws and customs have been adapted in response to the impact of European settlement. In such cases difficult questions of fact and degree emerge in determining what significance should be attached to the fact of change and in deciding what was changed: Yorta Yorta (HC) at [82].
It is important to appreciate, however, that some change to or adaptation of traditional law or custom, or some interruption of enjoyment or exercise of native title rights is not fatal to a claim: Yorta Yorta (HC) at [83]. The relevant criterion to be applied in determining the significance of a change or adaptation of traditional law or custom is whether:
“…the law and custom can still be seen to be traditional law and traditional custom. Is the change or adaptation of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples?”
(Yorta Yorta (HC) at [83]) [emphasis added]
According to the joint judgment in Yorta Yorta (HC) (at [84], [85], [87]), interruption of use or enjoyment presents more difficult questions:
“First, the exercise of native title rights or interests may constitute powerful evidence of both the existence of those rights and their content. Evidence that at some time, since sovereignty, some of those who now assert that they have that native title have not exercised those rights, or evidence that some of those through whom those now claiming native title rights or interests contend to be entitled to them have not exercised those rights or interests, does not inevitably answer the relevant statutory questions. Those statutory questions are directed to possession of the rights or interests, not their exercise, and are directed also to the existence of a relevant connection between the claimants and the land or waters in question.
Secondly, account must no doubt be taken of the fact that both paras (a) and (b) of the definition of native title are cast in the present tense. The questions thus presented are about present possession of rights or interests and present connection of claimants with the land or waters. That is not to say, however, that the continuity of the chain of possession and the continuity of the connection is irrelevant.”’ [emphasis in original]
On the question of biological descent, the Full Court observed at 388 [200]-[201]:
‘There is, however, nothing in the definition of “native title” in s 223(1) of the NTA that incorporates a requirement of a biological link between the claimants and the holders of native title at sovereignty. Native title rights and interests in relation to land must be possessed under the traditional laws acknowledged and traditional customs observed by the Aboriginal peoples (s 223(1)(a)) and the Aboriginal peoples, by those laws and customs, must have a connection with the land (s 223(1)(b)). Apart from the requirement in s 223(1)(c) that the rights and interests must be capable of recognition under the common law, s 223(1) does not impose limits on the content of traditional laws and customs. In particular, it does not purport to limit native title rights and interests to those which have passed to the biological descendants of the Aboriginal people who held those rights and interests at sovereignty. Claimants may rely on other means of acquiring native title rights and interests, provided that traditional laws acknowledged and customs observed allow for those means of acquiring the rights and interests. As the appellants contended, on the assumption that traditional laws and customs continue to be acknowledged and observed, it is to those laws and customs that the inquiry must be directed to identify the current holders of native title rights and interests. [emphasis added]
Of course, the claimant group must continue to acknowledge and observe the traditional laws and customs of the Aboriginal people who enjoyed native title rights and interests at sovereignty. For that to occur there must be a sufficient link between the claimant group and the members of the society on whose traditional laws and customs the claimants rely to establish their rights and interests in relation to land.’ [emphasis in original]
As was also pointed out in the first De Rose decision at 395 [231]-[232], it is necessary for the claimants to identify the traditional laws and customs under which the native title rights and interests claimed are said to be possessed, and to identify the rights and interests possessed under the traditional laws and customs acknowledged and observed by the claimants. At [63] of the second De Rose decision, the Full Court stated that the link, which must be established between the rights and interests in relation to land or waters said to be possessed by a native title claimant community or group and the community’s or group’s acknowledgement and observance of traditional laws and customs, cannot be stated more precisely than that:
‘…the community or group must show that it has acknowledged and observed those traditional laws and customs that recognise them as possessing rights and interests in relation to the claimed land or waters.’
The Full Court observed at [64] that:
‘It must always be a matter of fact and degree as to whether the community or group has acknowledged and observed the traditional laws and customs on which it relies to establish possession of native title rights and interests.’
The critical question arising in the Yawuru and the Walman Yawuru claims is whether, applying the above principles, under the traditional laws and customs of the Yawuru community the claimant community, or the claimant group, possesses the native title rights and interests claimed in respect of the respective claim areas. The claimed rights and interests must find their origin in a body of norms or a normative system that existed when the Crown acquired sovereignty over the claim areas. In Western Australia the date of sovereignty is 1829 (see Rubibi Community v Western Australia (2001) 112 FCR 409 (‘Rubibi’) at 417 [21]). Of course, the impact of colonisation on the Aboriginal people in and around the Broome area has resulted in significant alterations to the traditional laws and customs observed by them. However, as was emphasised at 378 [164] of the first De Rose decision, account may be taken of alterations to and the development of traditional laws and customs after sovereignty, at least where the alterations or developments are of a kind contemplated by the laws and customs. Thus, the fact of significant alterations to laws and customs after sovereignty does not prevent those laws and customs from giving rise to native title rights and interests, provided they are possessed under presently acknowledged and observed laws and customs that can still be characterised as ‘traditional’ laws and customs.

The above observations relate to s 223(1)(a) and (b) of the NTA. The only issue raised by the parties in respect of s 223(1)(c) relates to extinguishment which, as explained in [12]-[13], I am not determining at this stage.
In order to apply the above principles, which can now be taken to be well established, it will be necessary to consider the laws and customs relied upon to establish the native title rights and interests claimed, to determine whether they are traditional laws and customs that have normative content and, if so, to determine whether the native title rights and interests possessed under those laws and customs are possessed by the Yawuru community or by any of the clans constituting the Yawuru community. Thus, although the particular question for decision at this stage relates to the seemingly discrete issue of whether native title in the respective claim areas is clan or community based, that question cannot be answered without consideration being given to all of the laws and customs relied upon to establish that title. On a superficial approach to those questions it might be expected that the answer is to be found in the laws and customs that relate to who can speak for the relevant areas and whose permission is required to enter those areas. However, as was pointed out in the second De Rose decision at [60]-[61]:
‘…given the centrality of the relationship between Aboriginal people and their country, any dichotomy between traditional laws and customs connected with rights and interests possessed in land and waters and those that are unconnected with such rights and interests may be difficult to establish.
Professor W E H Stanner, in his Boyer Lectures entitled “After the Dreaming” (delivered in 1968 and reproduced in the book of his essays, White Man Got No Dreaming (1979), at 230), observed that no English words can adequately express the links between an Aboriginal group and their homeland. He stated that to them it is their “hearth, home, the source and locus of life, and everlastingness of spirit”. As such, he suggested that it forms part of the set of constants that give Aboriginal persons their affiliation with other Aboriginal groups, links their whole network of relationships and provides the foundation for the complex structure of their social groups.’
Professor Stanner had stated that the Aboriginal doctrine of ownership and possession:
‘…formed the anatomy of a plan of reference for personal identity, group membership, kinship relationships, descent, marriage, religious and some non-religious observances, and even some mundane transactions of life.’ (WEH Stanner, ‘The Yirrkala Case : Some General Principles of Aboriginal Land-Holding’, paper prepared for the purposes of the land claim in Milirrpum v Nabalco Pty Ltd (1971) 171 FLR 141 and presented at the AIATSIS Seminar, February 1969, p 7)
In Sampi v State of Western Australia [2005] FCA 777 (‘Sampi’) at [954], French J described the relationship between indigenous societies and their land and waters as ‘holistic in character’.
The present case is not an exception to the above descriptions. Indeed, the evidence to which I later refer establishes that there are few, if any, traditional laws and customs that have no direct or indirect connection with the rights and interests being asserted. Adopting Professor Stanner’s formulation, that evidence establishes that, under the traditional laws and customs of members of the Yawuru community, their homeland ‘forms part of the set of constants that give [Yawuru] persons their affiliation with other Aboriginal groups, links their whole network of relationships and provides the foundation for the complex structure of their social groups’. Thus, in the present case there is not a simple dichotomy between traditional laws and customs connected with the communal or group rights and interests claimed, and those that are unconnected with such rights and interests. Accordingly, it is necessary to consider all of the evidence in relation to the traditional laws and customs relied upon by the parties to establish their respective claims. That evidence will be relevant to the following questions which must be considered in order to ascertain whether communal or clan native title rights and interests are possessed in the respective claim areas:
1.Whether the Yawuru community is a recognisable body of persons united in and by traditional laws and customs which, since sovereignty, have constituted the normative system under which the native title rights and interests in issue are being claimed?
2.Whether, under the traditional laws and customs acknowledged and observed by the Yawuru community, native title rights and interests in relation to the respective claim areas are possessed by:
(a) the Yawuru community; or
(b) the Walman Yawuru clan;
and, if so, whether the Yawuru community or the Walman Yawuru clan (as the case may be), by those laws and customs, has a connection with the claim area claimed by that community or group?
3.Whether the rights and interests possessed are:
(i)communal native title rights and interests of the kind claimed by the Yawuru claimants; or
(ii)group native title rights and interests of the kind claimed by the Walman Yawuru claimants?
The questions set out above can be answered without determining the following issues:
(a)the precise criteria for membership of the Yawuru community and, in particular, the circumstances in which non-Yawuru persons may become members by adoption or incorporation;
(b)whether the Djugan and Goolarabooloo form part of the Yawuru community and, if not, what are the consequences of that finding;
(c)whether the traditional laws and customs of the Yawuru community provide for succession to tribal or clan estates and, if so, whether such a succession has occurred;
(d)the nature and extent of the native title rights and interests possessed by the title holders or the areas in respect of which a native title determination may be made; and
(e)the native title rights and interests that have been extinguished.
The Yawuru claimants adduced a substantial body of evidence to the effect that the native title rights and interests they claim in relation to the Yawuru claim area are possessed, under the traditional laws and customs acknowledged and observed by the Yawuru community, by the Yawuru community, rather than by any of the clans (such as the Minyirr or Walman clans) constituting the Yawuru community. That evidence was supported by the expert evidence of the anthropologist called by the Yawuru claimants, Dr Palmer (‘Palmer’). The Yawuru claimants also tendered certain evidence adduced, and relied on certain findings made, in Rubibi in which I made a determination of native title in respect of the ‘law ground’ at Kunin. The evidence and findings relied upon, which are set out in the schedule of evidence filed on 17 April 2003 by the applicants, is to be understood and considered in the context of the different issues to be decided, and of the substantial body of further evidence adduced, in the present case. Also, I am mindful of the fact that the Walman Yawuru claimants were not parties to Rubibi, although their representative did appear and rely upon certain Walman Yawuru witness statements at one stage of the hearing. Nonetheless, as I later explain, a number of the observations and findings in Rubibi are amply supported by the further evidence adduced in the present case.
The evidence relied upon by the Walman Yawuru claimants to establish their claim was the evidence given by eight Walman Yawuru witnesses and the evidence of an anthropologist, Rory O’Connor (‘O’Connor’), who was called by the Walman Yawuru claimants to give evidence as an expert witness.
Although there were a number of other respondents, only the State of Western Australia adduced any significant evidence in opposition to the respective claims for native title rights and interests. The State of Western Australia relied primarily on the evidence of an anthropologist, Professor Sansom (‘Sansom’), who was called by the State of Western Australia to give expert evidence.
There were few objections to the evidence of the lay and the expert witnesses. Rather, it was accepted that it was a matter for the Court to give that evidence the weight that was appropriate in the circumstances. Finally, as the Aboriginal witnesses were generally addressed by reference to their first names during the hearing I will continue to refer to them by reference to those names in these reasons for judgment.
Before turning to the evidence it is appropriate to make certain observations about the reliability of the ‘oral history’ evidence of indigenous witnesses in a native title case. As was stated in the joint judgment in the High Court in Yorta Yorta at 449 [63], it is an:
‘…impermissible premise that written evidence about a subject is inherently better or more reliable than oral history on the same subject.’
I considered that issue in Rubibi at 422 [53]:
‘The final category of evidence that is logically probative of the role of the law ground in accordance with Aboriginal law and tradition is the oral testimony of witnesses called by the Rubibi applicants. Before turning to that evidence it is appropriate to re-iterate certain observations I made in the Croker Island case at 256 – 257 [348]-[350]:
“Traditionally, Anglo-Australian culture has placed greater value on written material than on oral accounts. Oral accounts are often considered to be subjective in comparison to written records’ assumed objectivity and the spoken word is understood as being susceptible to modification over time as it is retold from one person to another: see Gray J, “Saying It Like It Is: Oral Traditions, Legal Systems and Records” (1998), Archives and Manuscripts 26:2 at p 248. In comparison, the written word tends to become immutable once recorded, less vulnerable to change and strengthened each time it is relied upon as authority.
Thus, in Delgammukw v British Columbia (1991) 79 DLR (4^th) 185 the trial judge treated oral history as only confirmatory evidence. That led Lamer CJC to observe (at 236), in the Canadian context, that such an approach would have the consequence that: “…the oral histories of Aboriginal peoples would be consistently and systematically undervalued by the Canadian legal system.”
As Lamer CJC said (at 231) courts hearing indigenous peoples rights litigation have had to “come to terms with the oral histories of Aboriginal societies”. See also Mason v Tritton (1994) 34 NSWLR 572 at 588-89 per Kirby J.”’
In contrast with the approaches set out above Professor Stanner cautioned against an oral history ‘making the past consistent with an idealised present’. (WEH Stanner, On Aboriginal Religion, University of Sydney, 1989, p 242)
In considering the evidence I have taken the above observations into account.
3. The Yawuru Witnesses
The Yawuru claim is that the Yawuru claim area has been occupied from time immemorial by members of the Yawuru community and their ancestors and that during that period the Yawuru community has continued to practice traditional laws and customs in relation to Yawuru country. It is claimed that the Yawuru community, by those laws and customs, has maintained a connection with the land and waters in Yawuru country despite the impact of colonial settlement in Broome, particularly since its gazettal as a town in 1883. Broome had by that time become popular for pearling, which resulted in many Aboriginal people being forced to work as divers on the luggers. Pastoralism also impacted heavily on the Aboriginal population, as did the government policies which excluded many Aboriginal people from the Broome township until the 1950s and led to the removal of many Aboriginal children to missions, such as that at Beagle Bay.
The Yawuru claim area is largely made up of certain pastoral leases and unallocated Crown land and reserves. It may generally be described as commencing down south at Bungarrangarra, going north to Willie Creek and then east to Garawan. The Yawuru claimants’ evidence is that south of Bungarrangarra is Karajarri country, north of Willie Creek is Jabirr Jabirr country and east of Garawan is Nygina country. These boundaries were said to have been created by the Bugarrigarra. Joseph ‘Nipper’ Roe, a senior Yawuru ‘law man’, described Yawuru country as follows:
‘Well, this is Yawuru country, you know, the law was set down from the Bugarrigarra time; creative beings that came and left and gave people the law and culture, you know? Gave us the skin groups, so within that particular area, you know, this is how we’re related to one another, you know, and shared with one another…’
Membership of the Yawuru community was claimed to be primarily by way of ambilineal descent from Yawuru ancestors. Adoption and incorporation into the Yawuru community are also claimed to give rise to membership. Much of the evidence of the Yawuru witnesses did not conflict with the evidence of the Walman Yawuru witnesses. For example, the Yawuru witnesses generally accepted that members of the different families or clans comprising the Yawuru community held special attachments to particular areas of country. Those attachments were often based on a mother’s or father’s association with certain parts of country, a birthplace, a rai place or a particular responsibility in respect of ‘the law’ at a particular site. Although there was disagreement about certain events and incidents the main conflict related to whether the attachments conferred the right to exclude non-clan members from the clan areas unless permission was given to enter those areas.
The evidence of the Yawuru witnesses was given in English. On two occasions male restricted evidence was given and restrictions were placed on the distribution of the record of that evidence in order to ensure that gender and other restrictions required under customary law were observed. At the request of the Yawuru claimants, throughout the hearing a screen was used to prevent mothers-in-law and sons-in-law attending the hearing from seeing each other, as malinyanu requires that mothers-in-law and sons-in-law not look directly at each other. In total 18 witnesses, who identified as Yawuru persons, were called to give evidence and five witnesses from surrounding Aboriginal communities also gave evidence in support of the Yawuru claim. Although criticisms were made of the evidence of some of the Yawuru witnesses I am of the view that they endeavoured to give their evidence honestly and to the best of their recollection of the relevant events, many of which occurred long ago.
Traditional Aboriginal connection with the areas in and around Broome was discussed in Rubibi. However, the discussion was largely confined to the connection that was relevant to the use of Kunin as a ‘law ground’. In Rubibi, I found that Kunin had been used as a traditional Aboriginal ‘law ground’ at and since 1829 and that the Yawuru community, who did not include the Goolarabooloo, had established a traditional connection with Kunin. In that context I concluded at 442 [143]:
‘The continued respect for, and recognition of, Kunin as a traditional law ground by members of the current Yawuru community and its continued use for putting male members of that community “through law” is an example of the continuity of the traditions of the Yawuru community. The evidence, to which I referred earlier, relating to rai, kinship system, the Bugarrigarra, the passing down of traditional knowledge and law and continued, albeit sparse, use of Yawuru and its dialects within the community, all tend to establish that the present community has maintained communal traditions, customs and laws. I do not regard the evidence as establishing that those traditions have ceased to be observed in accordance with Yawuru custom and law.’
In the present case the continuing acknowledgement and observance of traditional law and custom by the Yawuru community was contested. Sansom, in his main report, considered whether the current Yawuru society is a community that acknowledges and observes the laws and customs of the pre-contact society. He accepted that the current community of people identifying as Yawuru would constitute such a community provided that they acknowledge and observe the traditional laws and customs. Sansom claimed that the kinship system has been modified over the years, leading to a cognatic system, but that these revised arrangements do not necessarily break ties with land. Sansom also stated that ‘[m]aintenance of the separate northern and southern traditions of ceremony and myth are evidence of continued observance of the laws and customs which connected people to the claim area at the time of sovereignty.’ Sansom pointed out that there is evidence of ‘caring for country’ and the passing on of knowledge concerning country, along with continued connection to the land through rai. In considering whether the acknowledgement and observance of the traditional laws and customs has continued substantially uninterrupted since sovereignty, Sansom stated:
‘In general, my interpretation is that the people have continued to be true to an evolving set of laws and customs that have developed in order to allow Yawuru to adapt to post-contact conditions.’
Sansom noted that ‘certain traditional laws and customs have fallen into desuetude including ‘increase sites’, marriage by bestowal, and the endangerment of the Yawuru language. However, traditional ‘male initiation ceremonies are still performed and secret sacred knowledge is still transmitted according to traditional conventions’ and ‘[s]acred objects are stored and maintained.’ However, prior to giving evidence Sansom gave a notice of change of view, which led to a number of his earlier views being modified.
O’Connor enumerated what he regarded as indicia of continuity of traditional law and custom. These include: the use of aboriginal names; the ‘skin section’ system; practice and transmission of ritual knowledge and practices based on traditional law and custom; handing down of traditional skills; the use of natural resources; maintenance of strongly held traditional beliefs; and maintenance of connection with ancestors. All of these indicia were regarded by O’Connor as fundamental to continuity of traditional law and custom. O’Connor also includes other indicia that he sees as important, but not fundamental, to establishing continuity of traditional laws and customs namely: marriage rules; avoidance of names of the dead; secrecy; consciousness of language; knowledge of Dreaming stories; maintenance of the traditional authority structure; knowledge of water resources; use of fish traps; and knowledge of estate and local names.
It is in the above context that the evidence of the Yawuru witnesses in relation to their observance of traditional law and customs is to be considered. However, before doing so it is convenient to set out briefly their roles or backgrounds. Frank Sebastian (known as Gajai), Francis Djiagween (known as Lulga), Patrick Dodson and Joseph ‘Nipper’ Roe are senior Yawuru ‘law men’ who gave evidence. Elsie Edgar, Thelma Saddler and Susie Gilbert are senior Yawuru ‘law women’, although only Elsie Edgar gave evidence. Other Yawuru witnesses were Cissy Djiagween and her daughter Mary Tarran, Doris Edgar and her son Thomas Edgar, Neil McKenzie, Kevin Puertollano, Michael (known as Micklo) Corpus, Alberta bin Omar, her sister Madge Yu and Simon Williams. Joseph Roe, Teresa Roe and Richard Hunter also gave evidence. Both Joseph Roe and Richard Hunter are senior ‘law men’ for ‘the law’ referred to as the northern law or the northern tradition. Only Joseph Roe, through his father, has Yawuru ancestry. Richard Hunter gave evidence on country but was not otherwise called to give evidence. Five ‘law men’ from surrounding tribes also gave evidence: Steven Possum from Karajarri country to the south; Peter Clancy from Mangala country to the south-east; Misha Peters from Nyangumarta country further south; Peter Francis from Nygina county to the north east; and Paul Sampi from Bardi country to the far north. The country between Yawuru and Bardi country is Jabirrr Jabirrr and Nyul Nyul country. A number of the witnesses had also given evidence in Rubibi, which they adopted for the purposes of these proceedings.

The evidence given by the Yawuru witnesses about traditional laws and customs was more detailed than the evidence of the Walman Yawuru witnesses in relation to those matters. It is appropriate to set out the Yawuru witnesses’ evidence under the relevant topic headings.
(a) The Bugarrigarra
The traditional laws and customs claimed to have been observed and acknowledged by the Walman Yawuru clan and the Yawuru community were derived from the same source, namely the Bugarrigarra (the Bugarri as the Walman Yawuru witnesses called it). The evidence establishes that the Bugarrigarra is at the core of the cultural and spiritual existence of the Yawuru community and of the respective clans comprising the Yawuru community. Indeed, a common element in the evidence of the Yawuru and the Walman Yawuru witnesses was their belief that the Bugarrigarra was the source of all of their traditional laws and customs.
In Rubibi at 434 [113]-[114], I accepted the following evidence, which was adopted at the present hearing, in relation to the Bugarrigarra:
‘[Patrick Dodson] described the Bugarrigarra as the period in which all the features (including soaks that provide water and enable people to inhabit a location) were placed upon the land; and when the law, the kinship structures and languages were given to the people inhabiting that land. Mr Dodson said it was a period that goes back to before anything that can be thought of.
…Mr Dodson explained the Bugarrigarra story associated with Kunin and other Yawuru land. In substance, the Bugarrigarra story outlines the manner in which its two mythical heroes, along a track laid down by them, establish the peoples, the soaks, the ceremony grounds and the other physical features of the landscape in places located along the track. The mythical heroes then give the people already in the various locations their law, kinship system, language and food sources. Mr Dodson said that “they make the country from nothing, basically”. In the Bugarrigarra story the mythical heroes travel along the track creating the social order and rules that are to govern the various peoples along the track. Thus, in the story, Kunin was established as an Aboriginal law ground and, once established in that way, although sacred objects may be moved to and from it, remains a law ground as it is “put there from Bugarrigarra”. Likewise, the law ceremonies, by which Yawuru men are given secret esoteric knowledge of the Bugarrigarra (the second stage ceremonies), are prescribed during the course of the journey.’
A similar explanation was proffered at the present hearing by Palmer, who stated that the Bugarrigarra was:
‘…a time before present when the earth, as we know it today, was modified by the actions of creative beings who roamed the land and performed deeds. These are now related in narrative, song and enacted in ritual. The creative beings also brought the language which is spoken by each community of people, named animals, birds and natural features, and brought customs, beliefs and religious observances. They were, then, creative, not just in the sense that they modified the landscape and rendered the physical world as we know it today, but because they also brought all aspects of practice, belief, custom and observance that can be described as culture. This period … is also a continuum of time, extending to the present, so the spiritual potency of the bugarigara is manifest today as it was in the far past.’
Palmer further explained the Bugarrigarra:
‘There is believed to have been a time before now which was both a enduring spiritual time, but also something which continues into the - into the present. It was a time during which extraordinary spiritual things happened which are now believed to provide the basis, the fundamental, the very foundations of the society that I studied. And there are many other aspects to this belief, but they're all wrapped up in this single term, “Bugarrigarra”, for this community… It’s perhaps the one most single - well, I - perhaps it’s hard to say that it’s the most single, but it’s a most important and fundamental aspect of the applicants’ belief.’
Later, Palmer said:
‘I suppose the other thing about Bugarrigarra is that it – it defines and informs, in my observation, the applicants’ views about the essential spirituality of the natural world around them, and of their points of - well, their - their articulation with it, their interaction with it.’
The Bugarrigarra, as explained above, is the source of the traditional laws and customs of the Yawuru community, from which flows the religious and spiritual connection of the Yawuru community to their country.
(b) ‘The law’
The teaching of the instructions laid down by the Bugarrigarra is referred to as teaching ‘the law’. Patrick Dodson detailed some of the rules of the Yawuru community that are laid come down as ‘the law’ by the Bugarrigarra. He stated:
‘There are rules about how you look after the country when you visit, there are rules that relate to the taking of things from the country and from the sea, you know, and not to exploit those resources, whatever they are, whether they’re fish or animals. There are rules about what you can - when you should kill things or not kill things and that is when you can - you know, when there are rules that the seasons dictate to us. There are rules about excluding people, so we can exclude people from this country. There are rules that people are able to - there’s people who are able to make a choice between whether they want to follow the Yawuru law, the southern law as you’ve been referring to or whether they want to send someone to the northern law. You can make those sorts of choices. That’s not a problem for us.
And similarly you - if - there are rules about your mother-in-law and how you behave towards her or don’t. There are rules for yourself to uphold the laws, otherwise as a lawperson with knowledge of things, you yourself can be punished. The country punishes you, and we often see that in terms of storms or big rain or, you know, winds and things like that, that there’s people who don’t live in accordance with the laws. There are punishments that arise from the country itself that can arise internal to the law. There are rules about that, so how you argue that out, who argues for you or doesn’t argue for you. There are rules about who you admit into the law and who you don’t.
…
There are rules that are a part of not only behaviour but also of rights, rights to do things on the country like fish and hunt and all that.’
Two legal traditions, which lay down ‘the law’, are claimed to be applicable in Yawuru country. Each of the traditions involves the creation of the world by mythological creatures or heroes who gave the people their ‘law’, waterholes (soaks or jilas), ‘law grounds’, songs, ‘skin sections’ and languages. Patrick Dodson outlined the path of the southern tradition in the Yawuru claim area in a restricted exhibit. The southern tradition is ‘the law’ that is generally practiced by the Yawuru, Karajarri, Nyangumarta, Nygina and Mangala people. The northern tradition is generally practiced by the Bardi, Nyul Nyul, Jabirrr Jabirrr and Nyambal people. The southern tradition (southern law) may be referred to in Yawuru country as the Yawuru law. The northern tradition is often called Bardi law. The ‘law bosses’ for the southern tradition in Yawuru country are Felix Edgar, Frank Sebastian (Gajai), Francis Djiagween (Lulga), Joseph ‘Nipper’ Roe and Patrick Dodson. The ‘law bosses’ for the northern tradition in Yawuru country were said to be Joseph Roe, Richard Hunter and Phillip Hunter.
The two traditions are kept separate. Joseph Roe said that the laws sit side by side without overlapping because ‘Bugarrigarra make them like that, we’re just following Bugarrigarra.’
While the Bugarrigarra and many of the basic rituals, customs and laws it prescribes are common to the northern and southern traditions, the two mytho-ritual traditions differ in their origin, being the journeys and undertakings of the mythological creators of the respective traditions. However, support for the claim of the Yawuru claimants that both traditions were observed in the same country is to be found in R Piddington’s article, which contains observations about the initiation ceremonies under both traditions in the country of the Karajarri people, which is to the south of the Yawuru claim area. (R Piddington, ‘Karadjeri Initiation’, Oceania, vol 3, no 1, 1932, p 46)
Men can go through both northern and southern law. Gajai said ‘[i]t has always been okay for a man to go through more than one law…The two laws don’t mix but they are respected in this country.’ Patrick Dodson said ‘[i]t’s not a unusual thing for a Yawuru man to go through northern law.’ Yawuru community members who have been through both laws include Lulga and Patrick Dodson’s grandson (by ‘skin’ and nephew by blood), Sooty Pigram. Several men who are now deceased, have also been through both laws, namely Paddy Djiagween, Bandak Bernard, Peter Kajit, Johnny Peters, and Stanley Djiagween, as well as Lulu and Paul Sampi.
Paul Sampi, a senior Bardi ‘law man’, described how the northern tradition of ‘law’ travels along two paths. The first path, Ungui, which is the first stage of ‘law’, travels down from Bardi country along the east coast of the Dampier Peninsula from Swan Point to the mouth of the Fitzroy River at Langey Crossing, then west to Garawan and then to Willie Creek. From there, it travels back to the east to Garawan and then north to La Djardarr Bay. The other part, Ululong, the second stage of ‘law’, travels down along the west coast of the Dampier Peninsula from Swan Point through to Wapunu in Karajarri country. Paul’s evidence was that, after World War Two, Bardi men, who were living and working in Broome and wanted to be able to practice Bardi law in Yawuru country, asked permission of the Yawuru ‘law men’ to start Ululong at Four Mile. Paul was living in Broome in 1949 and, as he had been through Ungui, was able to go through the second stage of the southern law. He says that ‘[i]n those days people went through both law[s].’
There is also a third tradition, which starts at Bilinnguru (Hidden Valley) in Yawuru country and goes out into the desert. This tradition is like a ‘song line’ and is known as the Wanji or Dingarri. Peter Clancy, a Mangala man who gave evidence about the Wanji, stated that it speaks ‘Yawuru language in Yawuru country, Karajarri language in Karajarri country, and Mangala language in Mangala country. I know the songs for the Wanji right through.’
There was some confusion as to how the Yawuru claimants relied upon the northern tradition in making out their case. Ultimately, they accepted that the normative system upon which they relied was the southern tradition, but they claimed that under that tradition there was a recognition and acceptance of the overlapping role played by the northern tradition in the Yawuru claim area.
The management of the religious life, rituals and inductions, and the maintenance of ritual objects and songs, is referred to as ‘law business’. Induction into the various stages of ritual knowledge is referred to as ‘going through law’. A boy’s ‘skin brothers’ or grandfather jamuny side are responsible for making arrangements to ‘put the boy through the law’. It is referred to as being ‘grabbed’. A person cannot apply to ‘go through the law’; it is a matter that the ‘law bosses’ decide upon. Both the southern and northern traditions have two stages. Under the southern law, a man ‘goes through’ the first and second stage law (each of which has a gender restricted name). Only the men who have ‘gone through’ all of the stages of the ‘law ceremony’ can acquire advanced traditional knowledge of the law.
Gajai explained the obligations of ‘law men’ as follows:
‘Well, lawmen under Yawuru law we’re there to protect our rights and make sure the same ceremony and the law keeps on going and trying to teach our young people the law and culture of that land that our forefathers left before they passed away and trying to make them understand this, that we’ve been here before white man.’
A ‘law man’s’ duty is to ensure that ‘the law’ is respected and traditions are followed. This may require consultation from time to time with ‘law bosses’ in other people’s countries who share the traditions. Patrick Dodson explained that, when he was giving evidence, the ‘law men’ from surrounding countries that share the same ‘law’ as the Yawuru, the southern tradition, were ‘sitting here because they need to hear what I’m saying so if I say something wrong, won’t be this Court that fix me up; it will be those people.’ The evidence also established that it was the ‘law bosses’ responsibility to speak for the law. Thus, as Patrick Dodson explained, members of the community are to listen to and be guided by the senior ‘law men’. However, Patrick made it clear that, although there is mutual respect and consultation between the ‘law men’ responsible for the two traditions in relation to matters of mutual concern, the ‘law men’ are separately responsible for their respective ‘law grounds’.
No Yawuru boys or men have been ‘through the law’ at Kunin since Joseph ‘Nipper’ Roe and Patrick Dodson went ‘through the law’ in 1994. However, when asked if this meant that ‘the law’ is not in use, Patrick replied it did not mean that at all:
‘Because the law is in the land there. The law is in the ground. Wherever you travel around here, anywhere on the country, you think of the law. The law governs you, by your behaviour, what you do, where you go, how you behave even if I go to some other country, some other place like Nygina country or Karajarri country, Nyangumarta country, I got to worry about that place.’
Patrick noted that ten years is ‘a relatively short period in … our culture because the law was put there from the Bugarrigarra.’ There are also a number of ‘law grounds’ in Yawuru country that are no longer used as ‘law grounds’, but Gajai said they remain ‘law grounds’ as ‘[t]he land is still strong. The places are still strong.’
The issue of whether Kunin had fallen into disuse as a ‘law ground’ was considered in Rubibi at 427-429 [80]-[85]. I concluded at 429 [84] that, notwithstanding gaps in use, the ‘continuing traditional use of Kunin as a law ground had been substantially maintained.’ I pointed out the dangers of such issues being decided on the basis of a ‘historical snapshot’ of the cessation of traditional practice or observance of traditional laws and customs. I am not satisfied that the evidence in the present case is such as to justify a different finding to that made in Rubibi. In that regard it is relevant to note the evidence to the effect that, although no further initiation ceremonies have been conducted at Kunin, that situation is expected to alter. Also, evidence was given of the continuing storage of important objects at Kunin as well as of activities designed to protect it as a ‘law ground’.
Both men and women can ‘go through the law’, but much of the detail of religious ceremony is gender restricted. Women are prohibited from ever gaining certain knowledge. In particular, women should not question men about ‘law matters’ that go into the detail of ‘the law’. For example, during the hearing it became clear that a number of witnesses were uncomfortable with being asked questions by female counsel. When Joseph ‘Nipper’ Roe was asked about the ‘law ground’ at Darbanngangaba:
‘MS WEBB: Yes. And can you tell me how you got that responsibility to look after that area?
NIPPER ROE: Well, I don't want to go - - -
MS WEBB: No.
NIPPER ROE: - - - into the law side of it again, because - because it’s not really right that a lady should ask me.
…
HIS HONOUR: Well, Nipper, there’s two possibilities. If it’s because you’re being asked about secret men’s business, that is a matter for restricted evidence, but the other is that if it’s embarrassing for you to be asked the question by a woman, would it be less embarrassing if it was asked by me?
NIPPER ROE: Well, we got law womens here and, you know, it’s not their rights even to talk about or question a man about anything to do with the law.
HIS HONOUR: Yes. I understand - - -
NIPPER ROE: And for them to listen to it, you know, it’s not - you know? It's quite annoying.
HIS HONOUR: Yes. So - - -
NIPPER ROE: Or distressing.
HIS HONOUR: - - - it’s something you’d rather talk about in a restricted session, or you can only talk about in a restricted session - - -
NIPPER ROE: Yes.
HIS HONOUR: - - - where there are only men. Is that correct?
NIPPER ROE: Yes. Yes.’
The Yawuru women endeavoured to avoid anything considered to be ‘men’s business’ and, as with men who haven’t ‘been through law’, they avoid the ‘law grounds’. An example of the women declining to be present when ‘law business’ is discussed occurred during the evidence of Edward Roe, one of the Walman Yawuru witnesses. Edward was asked in re-examination if he was an initiated man, and he explained that he was not, as he had been circumcised as a baby. He was then asked to tell the Court what he knew about boys being ‘grabbed for the law’. At this point all the Aboriginal women in the room where the evidence was being heard walked out, apparently in response to ‘men’s business’ being discussed in their presence. Another example is the prohibition against women observing boys ‘going through law ceremonies’. Joseph ‘Nipper’ Roe gave evidence that he ‘was told about a time when Thelma’s sister saw men during ceremony; she was very sick after that happened. That was her punishment. No-one did anything to her; the law made her sick.’
Joseph ‘Nipper’ Roe stated that the belief is also held that if people show no respect for country, ‘things might accidentally happen to these people’. A person who visits a place which should not be visited may get hurt or sick, and there is nothing that anyone can do to stop that from happening because, as Joseph ‘Nipper’ Roe explained, ‘that’s been set from the Bugarrigarra time, you know, that be left in the country to protect the country’. Phillip Corpus gave evidence that Ludo Dolby and two other boys became sick when they visited the burial grounds of Walman Yawuru people.
Felix Edgar gave evidence in Rubibi that before he went through the law, he was not allowed to go to the ‘law ground’ at Kunin. A number of other witnesses gave evidence about how they would avoid sacred sites and ‘law grounds’. Cissy Djiagween says people avoid Gantheaume Point because it’s a very significant and dangerous place from the Bugarrigarra. Doris Edgar gave detailed knowledge about the location of ‘law sites’, and identified places where women are not permitted to visit. In particular, she mentioned Buga Wamba as a very powerful and dangerous ‘men’s business place’. She said that ‘[t]hey can sing that rock and the rock would kill someone.’ Elsie Edgar also gave evidence that it was a very dangerous place, and that one woman who never believed the stories went and sat on top of the rock, and ‘both her hands and feet got tangled up and she had to be taken to the hospital.’ Mary Tarran also avoids Buga Wamba, claiming that it is a ‘bad man dreaming place’, and she tells her children not to go there.
Gajai said that when he was younger his mother and grandmother would tell him to stay away from the ‘law ground’ at Kunin, because it was a dangerous place. He was ‘grabbed for law’ when he was about 17 or 18 by his jamuny (grandfather) by ‘skin’. He had to walk for three days along the coast and had ceremonies at a number of places in Karajarri country, before coming back to Broome for a ceremony at Kunin. He was initiated at Kunin, and then he stayed in the bush for around four weeks. Later, in 1963 or 1964, Gajai went through another ‘law ceremony’ to be made a ‘law man’. Gajai gave evidence that the ‘law men’ will need to hand down ‘law responsibilities to suitable young men’. He said that ‘[w]e have been talking about who might be suitable but no decisions have been made yet.’ Gajai noted that ‘[t]he proper way is for boys to be put through law at the end of the year, so I reckon at the end of the year … boys will go through.’

In the course of his cross-examination, Sansom generally adhered to the above views. In particular, he gave the following evidence at the hearing concerning para 8:
‘MR BELL:     Paragraph 6 refers to the:
“…emergence of cognatic systems of kinship in all regions of Australia.”
Does it not?
PROF SANSOM:       Yes.
MR BELL:      Paragraph 8 says:
“Processes of evolution referred to in 4, 5, and 6 above are processes of evolution of customs observed and traditions acknowledged by people who through the generations have maintained connection with the language country of their forebears. Further, as explained in the text of this report, the evolutionary processes rely on the further elaborations of possibilities as provisions for contingencies were always inherent in traditional laws and customs as these were enunciated and put into practice in current times – in classic times.”
Now, you’ve already indicated to the court that you maintain the view expressed in that paragraph. That seems to me to say, in black and white, that the process that you have observed among the Yawuru as described in – relevantly, in 3, 4, and 5, is traditional. Is that not so?
PROF SANSOM:       No.
MR BELL:      Why is that not so? Why does 8 not mean that?
PROF SANSOM:       There’s been a certain continuity with tradition, but if you transform the system because of a contact – a culture contact situation, you don’t have, in totality a traditional system as you had in the past.
MR BELL:      Undoubtedly, that’s true. But that’s not what paragraph 8 says, is it?
PROF SANSOM: What paragraph 8 says is that the people have maintained connection with the language countries of their forebears.
MR BELL:      Yes.
PROF SANSOM:       And that’s what I said at the time.
MR BELL:      Well, you say a lot more than that. I’m not going to read it again, Professor Sansom.
PROF SANSOM:       Mm. That - - -
MR BELL:      Have you, in fact, changed your view?
PROF SANSOM:       I haven’t changed my view.
MR BELL:      Let’s go through it - - -
HIS HONOUR:          Professor, maybe the stumbling block lies in the second sentence. As I understand the second sentence of paragraph 8, what you seem to be suggesting is that the traditional processes of Aboriginal society themselves contain provisions for contingencies. And you seem to be suggesting that the evolution which you’ve described in the first sentence can be regarded as one of the kind of contingencies that were inherent in traditional laws and customs. That’s what you seem to be saying. Is that right or wrong?
PROF SANSOM:       That is correct. As I said, it’s further elaboration. And so, what you’re dealing with is very rapid and unprecedented change.
MR BELL:      Well, no - - -
HIS HONOUR:          Yes, go on.
MR BELL:      I’m sorry.
No doubt, Professor, I’ve already conceded that, but what I’m putting to you is that that’s not what you advert to in these conclusions. What you advert to is the way in which traditional societies evolve in response to change by reference to inherent mechanisms, traditional in form. And what you say in paragraphs 3, 4, and 8 is, in effect, that Yawuru social organisation now is the product of that kind of evolution.
PROF SANSOM:       I say that, yes.
MR BELL:      You do say that.
PROF SANSOM:       Yes.’
As explained above, I have not accepted Sansom’s view that at sovereignty Yawuru society followed the patriclan estate model or a model with a rule of exclusive possession. However, I have accepted that it is likely that the Yawuru clan members had particular attachments to, and responsibilities for, areas with which the clan was traditionally or historically associated. However, the attachments and responsibilities, under the traditional laws and customs of the Yawuru people, did not amount to exclusive possession. Subject to that qualification, I otherwise accept that Sansom’s evolutionary model, as explained in paras 3, 4, 5, 6, 8, 9 and 14 of his interim report, is borne out by both the ‘oral history’ evidence of the Yawuru claimants’ witnesses and the anthropological evidence of both Palmer and Sansom.
That conclusion is significant because it confirms the view I have formed that the present cognatic or ambilineal structure and definition of the Yawuru community is in accordance with the traditional laws and customs acknowledged and observed by the Yawuru community. It also confirms that, whatever the precise structure and traditional definition of the Yawuru people at sovereignty might have been, a change from a community similar to a patrifileal clan-based community at or before sovereignty to a cognatic or ambilineal based community is a change of a kind that was contemplated under the ‘contingency provisions’ of those traditional laws and customs.
It would follow that WAFIC’s contention that, an evolution from a clan-based estate and exclusive possession system at sovereignty to a community-based model after colonial contact was so fundamental that it cannot be a change contemplated by traditional law and custom, must be rejected for two reasons. First, the evidence has not established the clan based and exclusive possession estate system suggested by WAFIC. Second, the evolution to the present cognatic and ambilineal system was a change that was contemplated by traditional law and custom.
6. Conclusions
I now turn to the three questions set out in [30]. However, it is appropriate to emphasise that the conclusions set out below, which are based on the findings I have already made, do not determine any of the matters set out in [31].
1.Whether the Yawuru community is a recognisable body of persons united in and by traditional laws and customs which, since sovereignty, have constituted the normative system under which the native title rights and interests in issue are being claimed?
I am satisfied that the present Yawuru community, as generally defined in the genealogies, is a recognisable body of persons who are likely to be descendants, on an ambilineal or cognatic basis, of members of the Yawuru community at the time of colonial contact, and therefore at the time of sovereignty (see [177]-[181], [266], [291] and [362]-[363]). As I have concluded that a definition of the Yawuru community on the basis of ambilineal or cognatic descent is in accordance with the traditional laws and customs of the Yawuru community (see [181], [266], [290]-[291] and [362]-[364]), it follows that the present Yawuru community is not a new community or society or one whose members are not descended in accordance with traditional law and custom from the members of the Yawuru community at sovereignty.
The source of the Yawuru community’s traditional laws and customs, is the southern tradition, as laid down in the Bugarrigarra (see [53]). The holding, passing on and receiving of the Yawuru community’s traditional knowledge and ‘law’ has been as laid down in the southern tradition. The southern tradition formed part of the traditional laws and customs of the Yawuru community at sovereignty and is still acknowledged and accepted by the Yawuru community as governing all aspects of the traditional life of the community (see [79]). My findings concerning the role in the Yawuru community of the traditional laws and customs relating to rai (see [90]), the Yawuru language (see [96]), ‘skin’, kinship and malinyanu laws and customs (see [109]), traditional stories (see [122]), name traditions (see [131]), hunting and bush foods (see [136]), ‘looking after country’ and ‘speaking for country’ (see [153]), ‘increase sites’ (see [159]) and permission requirements (see [173]), when considered cumulatively, demonstrate that the present Yawuru community still acknowledges and observes the traditional laws and customs which, since sovereignty, have constituted the normative system under which the native title rights and interests in issue are being claimed.
The additional findings I have made in relation to the anthropological evidence concerning ‘the law’ (see [263]-[266]), the role of rai (see [272]-[274]), the connection between language and tribal boundaries (see [280]-[281]) and the evolution of the traditional Yawuru community at sovereignty to its present form, both corroborate and confirm the findings set out in [366]-[367], insofar as those findings were made on the basis of the evidence of the Yawuru claimants’ witnesses. Of course, in a number of the findings, I observed that the present form and practice of the traditional laws and customs has changed in significant respects from the form and practice of those laws and customs at sovereignty. However, I am satisfied that the changes are of a kind that would fall within ‘the contingency provisions’ referred to in Sansom’s evidence (see [264]-[266] and [289]-[291]). Those provisions are premised on the undoubted fact that traditional laws and customs are not fixed and unchanging. Rather, they evolve over time in response to new or changing social and economic exigencies to which all societies adapt as their social and historical contexts change. While such changes can have the consequence that the adaptation results in the laws and customs no longer being traditional laws and customs, as is apparent from my findings I am satisfied that the changes to the traditional laws and customs of the Yawuru community are of a kind contemplated by those laws and customs and that those changes have not been such as to result in those laws and customs no longer being properly characterised as ‘traditional’. More specifically, the changes or adaptations are not of a kind that would result in it being able to be said that the native title rights and interests asserted are not possessed under the traditional laws and customs acknowledged and observed by the Yawuru community (see the first de Rose decision at 381 [174]).
Further, the genealogies also support the inference invited by the Yawuru claimants to be drawn of continuity of the Yawuru community that existed at the time of sovereignty through to the present time (see [177]-[181]). Having regard to all of the evidence I am satisfied that the Yawuru community has continued to be in existence throughout that period. On the basis of the above findings I am also satisfied that, allowing for the evolution of traditional laws and customs, the Yawuru community at the time of sovereignty acknowledged and observed a body of traditional laws and customs which have normative content and which have continued in existence to the present time. Those laws and customs have plainly been transmitted from generation to generation, find their origins in the pre-sovereignty norms and, notwithstanding their evolution over time, have had a continuous existence and vitality since sovereignty (see the first de Rose decision at 378 [165]). Accordingly, the first question is to be answered in the affirmative.
2.Whether, under the traditional laws and customs acknowledged and observed by the Yawuru community, native title rights and interests in relation to the respective claim areas are possessed by:
(a) the Yawuru community; or
(b) the Walman Yawuru clan;
and, if so, whether the Yawuru community or the Walman Yawuru clan (as the case may be), by those laws and customs, has a connection with the claim area claimed by that community or group?
The findings referred to in my answer to the first question afford strong support for the conclusion at which I have arrived that, under the traditional laws and customs acknowledged and observed by the Yawuru community, native title rights and interests in the respective claim areas were, and still are, possessed only by and on behalf of members of the Yawuru community, and not by or on behalf of members of any of the clans constituting that community. In particular, the findings in [354]-[357] and those referred to in [366]-[368] (and the substantial body of evidence on which those findings are based), point clearly to communal, rather than clan, native title rights and interests. Of particular significance is my finding that the evidence of the Yawuru claimants’ witnesses offers strong support for the anthropological view expressed by Dr Rumsey of the ‘necessary’ relation between ‘language and territory’ and the linking of ‘the law’, tribal boundaries and spiritual connection to country (see [281]). As I pointed out in the same paragraph, that relationship, and the consequential Yawuru linguistic boundary it creates, is recognised and respected by the senior ‘law men’ of other tribes practising the southern tradition. The anthropological evidence and the ‘oral history’ evidence of the Yawuru witnesses also establishes the linkage between ‘the law’, the tribal and linguistic boundaries created by the Bugarrigarra and spiritual connection to Yawuru country (see [263] and the findings in [343]-[344] and [350]). The co-incident linguistic, ‘law’ and tribal boundary, which was sourced and laid down by the southern tradition, forms part of the normative system constituted by the traditional laws and customs acknowledged and observed by the Yawuru community at and since sovereignty.
It is also significant that I have not accepted the evidence of the Walman Yawuru witnesses in support of a clan-based title (see [244]-[248]). I also have not accepted O’Connor’s evidence in support of such a title, insofar as it is based on the claims made to him by Walman Yawuru clan members. Further, I have not accepted that O’Connor’s or Sansom’s evidence about the patriclan estate model, being the model articulated by Professor Stanner and Elkin, establishes that native title rights and interests that accord with that model were possessed by patriclan members in the respective claim areas at or since sovereignty (see [354]-[357] and [362]-[3643]).
Of course, it does not necessarily follow from those findings that clan members do not have some non-exclusive native title rights and interests in their capacity as clan members. In that regard, I have accepted that it was likely that at sovereignty members of a clan, and others, had a special attachment to, and special responsibilities for, areas or sites with which the clan was associated (see [356]). A problem confronting the Walman Yawuru claim is that the evidence has not enabled me to be satisfied that at sovereignty those attachments and responsibilities resulted in those persons having native title ‘rights or interests’ in any specific site or area in their capacity as clan members, rather than in their capacity as members of the Yawuru community. More specifically, and having regard to the definition of native title ‘rights’ and ‘interests’, I am not satisfied that the evidence establishes that, by the traditional laws and customs of the Yawuru community, those attachments or responsibilities at sovereignty were such as to constitute a ‘right’ in respect of the Walman Yawuru claim area (or part thereof) or an ‘interest’, as defined in s 253 of the NTA, held by any clan members in that area (or part thereof). The main difficulty in that regard is that, although it is possible that clan members might have held such a right or interest at sovereignty in parts of the Yawuru claim area, the evidence of the Walman Yawuru witnesses and the anthropological evidence upon which the Walman Yawuru claimants have relied has not enabled me to determine the content of any traditional laws and customs which, on the balance of probabilities, might have given rise to rights and interests being possessed by Walman Yawuru clan members in the Walman Yawuru claim area (or part thereof) at sovereignty. In any event, the preferable view is that at sovereignty native title rights and interests throughout the Yawuru claim area were only possessed by members of the Yawuru community. As explained above, the ‘oral history’ evidence relied upon by the Yawuru claimants, which I have accepted, supports that view, as do the findings I made in relation to the corroborating anthropological evidence (see, for example, [370]).
While I accept that there may be some uncertainty and doubt as to the precise situation at sovereignty, my findings clearly establish that there is not any doubt as to the present situation. By the traditional laws and customs presently being acknowledged and observed by the Yawuru community:
(a)the only native title rights and interests possessed in relation to the respective claim areas are those possessed by members of the Yawuru community; and
(b)members of the clans constituting the Yawuru community, including members of the Walman Yawuru clan, do not possess native title rights and interests in relation to the Walman Yawuru claim area or any part thereof in their capacity as clan members.
The evolution, over time, in accordance with traditional law and custom, of a cognatic and ambilineal system of descent in the Yawuru community (including in the Walman Yawuru clan), necessarily brought to an end any patrilineal system of social organisation or any similar system. Insofar as the Walman Yawuru claimants contend that they observe a matrilineal system, I have not accepted that that system has existed or exists under the traditional laws and customs of the Yawuru community or under any other traditional system allegedly observed by members of the Walman Yawuru clan (see [294]-[297]). I also do not accept that they observe such a system (see [293]). The evolution to a traditional cognatic or ambilineal system has resulted in any traditional laws and customs, which once might have given rise to native title rights and interests being possessed by clan members (at any time prior to colonial contact including prior to sovereignty), having ceased to form part of the traditional laws and customs that are presently acknowledged or observed by the Yawuru community. More specifically, the traditional laws and customs relating to the cognatic or ambilineal system of social organisation of the Yawuru community define who is a member of that community and are not concerned with defining who is a member of any clan of that community. Thus, under that system, any claim by a clan member to native title rights and interests became extremely difficult to formulate and establish.
Insofar as clan members may have any special attachment to a specific area or site that has been, or is continuing to be, acknowledged by them or other Yawuru persons, that acknowledgement is a courtesy or respect, but the attachment or responsibility is not such as to constitute or give rise to a native title right or interest, as defined in ss 223(1) and 253 of the NTA. I am satisfied that any such attachment falls short of giving rise to any native title right or interest being possessed by a clan member in that capacity under presently observed traditional laws and customs in respect of any particular area of land or waters with which the clan has been historically associated. In the result, I am not satisfied that the evidence establishes that, under the traditional laws and customs acknowledged and observed by the Yawuru community, any of the rights or interests claimed by the Walman Yawuru claimants are possessed by them as members of the Walman Yawuru clan.
That leaves remaining the issue of connection under s 223(1)(b) of the NTA. As explained earlier in these reasons, there is no simple dichotomy between traditional laws and customs that are connected with land and waters and those that are not. Nonetheless, it is clear from the above findings that, by almost all of the laws and customs acknowledged and observed by the members of the Yawuru community, the members of that community have the requisite spiritual, cultural and social connection to land and waters in the Yawuru claim area. I need go no further than that finding at this stage as I am not yet determining the precise content of the rights and interests possessed under those traditional laws and customs. These findings are sufficient to establish the essential link between the laws and customs being acknowledged and observed by the Yawuru community and the Yawuru claim area. Accordingly, the Yawuru community, by those laws and customs, has the connection required by s 223(1)(b) of the NTA to land and waters that are situated in the Yawuru claim area. The same findings lead me to conclude that, by those traditional laws and customs, members of the Walman Yawuru clan do not have such a connection with the Walman Yawuru claim area in their capacity as members of the clan.
3. Whether the rights and interests possessed are:
(i)the communal native title rights and interest of the kind claimed by the Yawuru claimants; or
(ii)the group native title rights and interests of the kind claimed by the Walman Yawuru claimants?
It follows from the above conclusions that the native title rights and interests possessed in the Yawuru claim area:
(a)are communal native title rights and interests possessed by members of the Yawuru community; and
(b)are not the group native title rights and interest claimed to be possessed by members of the Walman Yawuru clan members.

I certify that the preceding three hundred and seventy five (375) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.
Associate:
Dated:             29 July 2005
Appearances in relation to the hearing concerning the establishment of native title:

Counsel for the Applicants: Mr K Bell QC with
Mr G Irving

Solicitor for the Applicants: Mr I Irving of the Kimberley Land Council

Counsel for the State of Western Australia: Ms R Webb QC with
Mr B King

Solicitors for the State of Western Australia: Crown Solicitor for the State of Western Australia

Counsel for the Commonwealth of Australia: Mr P Quinlan with
Mr A Rorrison

Solicitors for the Commonwealth of Australia: Australian Government Solicitors

Counsel for the Western Australian Fishing Industry Council (Inc): Mr M McKenna

Solicitors for the Western Australian Fishing Industry Council (Inc): Hunt and Humphrey

Counsel for the Walman Yawuru Respondents: Mr I Viner QC

Appearing as a representative of the Walman Yawuru Respondents: Ms R Hanigan

Dates of hearing in relation to the establishment of native title:
12, 13, 14, 15, 16, 17, 18, 19, 20, 21 May 2003,
3, 4, 5, 6, 9, 10, 11, 12, 13 June 2003,
27, 28, 29, 30, 31 October 2003,
3, 4, 5, 6, 7, 10, 11, 12, 13, 14 November 2003 and

14, 15, 16, 17, 18 June 2004

Date of judgment in relation to the establishment of native title: 29 July 2005

SCHEDULE
APPLICANTS:
CORPUS, Michael
DJIAGWEEN, Cecilia
DJIAGWEEN, Francis
DODSON, Patrick
EDGAR, Elsie
EDGAR, Felix
HUNTER, Richard
ROE, Joseph
ROE, Joseph ‘Nipper’
ROE, Teresa
SADDLER, Thelma
SEBASTIAN, Frank
RESPONDENTS:
01       Government Interests – State of Western Australia
Aboriginal Affairs Department
Aboriginal Lands Trust
Commissioner of Main Roads
Electricity Corporation
Minister for Aboriginal Affairs
Minister for Energy
Minister for Fisheries
Minister for Lands
Minister for Mines
Minister for Transport
Minister for Water Resources
State of Western Australia
02       Government Interests – Commonwealth of Australia
Airservices Australia
02A     Government Interests – Commonwealth of Australia
Commonwealth of Australia
02A     Government Interests – Local Government
Shire of Broome
04       Indigenous Interests
Bilgungurr Aboriginal Corporation
Kimberley Land Council
MATSUMOTO, Peter
ROBINSON, Margaret Mary
ROE, Edward Leonard
05       Mining Interests
CONNOLLY, Peter Scott
COUNTY, Brian Stanley
Maple Oil Exploration NL (Administrators Appointed) (Receivers and Managers Appointed)
06       Pastoral Interests
CROOK, Reginald D
Thangoo Pty Ltd (Thangoo Station)
07       Telecommunications Industry Interests
Telstra Corporation Limited
08       Tourism Interests
Broome Crocodile Park
Cable Beach Jet Boat Charter
Dampier Creek Boat Tours
Kimberley Birdwatching
The Kimberley Connection Pty Ltd
09       Fishing Interests
Australian Ocean Exporters Pty Ltd
BLATCHFORD, Kevin
Broometime Charters
CANNEY, Pam
FRASER, Alan John
IGNOTI, Les
IGNOTI, Peter
IGNOTI, Russell
Kimberley Fish and Ice Supplies
Lenden Nominees Pty Ltd
Leveque Wilderness Fishing Charters
LEW, Ian
LITTLETON, Kyran R
MOORE, Gary
NEWTON, Ross
Pearl Coast Charters
Pearl Sea Coastal Cruises
WEIR, Neville
09A     Fishing Interests
Western Australian Fishing Industry Council (Inc)
10       Pearling Interests
Australian Sea Pearls Pty Ltd
Broome Pearls Pty Ltd
Cygnet Bay Pearls
Paspaley Pearling Company Pty Ltd
Pearls Pty Ltd
Roebuck Pearl Producers Pty Ltd
Willie Creek Pearl Farm and Broome Coachlines
11       Petroleum Interests
E-Com Multi Limited
12       Non Party (For Information Only)
National Native Title Tribunal

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 6006 and 6238 of 1998

BETWEEN:	FRANK SEBASTIAN AND OTHERS (See Schedule) APPLICANTS
AND:	STATE OF WESTERN AUSTRALIA AND OTHERS (See Schedule) RESPONDENTS
JUDGE:	MERKEL J
DATE:	29 JULY 2005
PLACE:	MELBOURNE (HEARD IN BROOME)

Counsel for the Applicants:	Mr K Bell QC with Mr G Irving
Solicitor for the Applicants:	Mr I Irving of the Kimberley Land Council
Counsel for the State of Western Australia:	Ms R Webb QC with Mr B King
Solicitors for the State of Western Australia:	Crown Solicitor for the State of Western Australia
Counsel for the Commonwealth of Australia:	Mr P Quinlan with Mr A Rorrison
Solicitors for the Commonwealth of Australia:	Australian Government Solicitors
Counsel for the Western Australian Fishing Industry Council (Inc):	Mr M McKenna
Solicitors for the Western Australian Fishing Industry Council (Inc):	Hunt and Humphrey
Counsel for the Walman Yawuru Respondents:	Mr I Viner QC
Appearing as a representative of the Walman Yawuru Respondents:	Ms R Hanigan
Dates of hearing in relation to the establishment of native title:	12, 13, 14, 15, 16, 17, 18, 19, 20, 21 May 2003, 3, 4, 5, 6, 9, 10, 11, 12, 13 June 2003, 27, 28, 29, 30, 31 October 2003, 3, 4, 5, 6, 7, 10, 11, 12, 13, 14 November 2003 and 14, 15, 16, 17, 18 June 2004
Date of judgment in relation to the establishment of native title:	29 July 2005