Rubibi Community v Western Australia

Case [2001] FCA 607

FEDERAL COURT OF AUSTRALIA

Rubibi Community & Anor v The State of Western Australia & Ors
[2001] FCA 607

NATIVE TITLE – determination of communal native title under the Native Title Act 1993 (Cth) – claim to exclusive possession, occupation, use and enjoyment of an Aboriginal law ground for ceremonial and ritual purposes – whether the claimant community has substantially maintained its traditional connection with the law ground in accordance with traditional laws and customs – capacity of traditional law and customs that form the foundation of native title to evolve, adapt and change – whether entitlement to exclusive native title rights and interests has been extinguished – whether s 47A of the Act requires that any extinguishment be disregarded – Court’s role in resolving intra-communal dispute concerning native title rights and interests

Native Title Act 1993 (Cth) ss 47A, 223(1) and 253

The Queen v Toohey, Ex Parte Meneling Station Proprietary Limited (1982) 158 CLR 327 - cited
Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 - cited
The Wik Peoples v The State of Queensland (1996) 187 CLR 1 - cited
The State of Western Australia v The Commonwealth (1995) 183 CLR 373 - cited
Fejo v Northern Territory of Australia (1998) 195 CLR 96 - cited
Commonwealth of Australia v Yarmirr (2000) 101 FCR 171 – considered
Ward v Western Australia (1998) 159 ALR 483 - cited
Western Australia v Ward (2000) 99 FCR 316 - considered
Members of the Yorta Yorta Aboriginal Community v State of Victoria [2001] FCA 45 - discussed
Yanner v Eaton (1999) 166 ALR 258 - considered
Mason v Tritton (1994) 34 NSWLR 572 – cited

FELIX EDGAR, FRANK SEBASTIAN, PATRICK DODSON AND JOSEPH “NIPPER” ROE ON BEHALF OF THE RUBIBI COMMUNITY AND ROSIE CHARLIE ON BEHALF OF THE LEREGON (LANGANJUN) CLAN OF THE YAWURU TRIBE v THE STATE OF WESTERN AUSTRALIA AND OTHERS
WG 90 AND 91 OF 1998

JUDGE:         MERKEL J
DATE:           29 MAY 2001
PLACE:         BROOME


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WG 90 & 91 OF 1998

BETWEEN:

FELIX EDGAR, FRANK SEBASTIAN, PATRICK DODSON AND JOSEPH "NIPPER" ROE ON BEHALF OF THE RUBIBI COMMUNITY
FIRST APPLICANT

ROSIE CHARLIE ON BEHALF OF THE LEREGON (LANGANJUN) CLAN OF THE YAWURU TRIBE
SECOND APPLICANT

AND:

THE STATE OF WESTERN AUSTRALIA & OTHERS
RESPONDENT

JUDGE:

MERKEL J

DATE OF ORDER:

29 MAY 2001

WHERE MADE:

BROOME

THE COURT ORDERS THAT:

1.   By 5.00 pm on Thursday, 31 May 2001 the parties file and serve:

(a) the determination of native title that they contend gives effect to these reasons for judgment, together with their submissions concerning the manner in which the native title is to be held as required by ss 55-57 of the Native Title Act 1993 (Cth);

(b)     any submissions on the matters which have been directed in these reasons for judgment to be the subject of further submissions.

2.   The further hearing of this matter be adjourned to not before 2.15 pm…

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AGLC
Rubibi Community v Western Australia [2001] FCA 607
Case
[2001] FCA 607
Decision Date

CaseChat Overview and Summary

The case of Rubibi Community versus Western Australia involves the Rubibi applicants who are seeking to establish native title over certain areas of land. The applicants argue that the current residential use of part of the claim area is contrary to traditional Yawuru law and custom and is being conducted without the permission of the senior Yawuru law men. However, the applicants did not seek to establish a legal right to prevent the continuation of that use or to remove the Leregon structures. The court was required to determine whether these issues should be resolved as part of the process of making the determination of native title or as a separate and subsequent controversy. The court held that it is appropriate to make provision for submissions on these issues, including submissions as to the manner in which the dispute is to be determined.

The court held that the Rubibi applicants have established that native title exists in relation to Reserve 39631. The common or group rights comprising that native title are held by the Rubibi claimant group, who are members of the traditional Yawuru community. The native title held by the claim group includes a range of rights and interests, including the right of occupation, use, possession and enjoyment of the area for ceremonial purposes, the right to make decisions about the use and enjoyment of the area, the right to conduct ceremonies on the area, in accordance with traditional law and customs, and the right to control the access of others to the area. The native title is subject to certain limitations or restrictions, including the exclusion of rights and interests in respect of any areas in relation to which a previous non-exclusive possession act was done in relation to the area.

The court ordered that the parties file and serve the determination of native title that they contend gives effect to these reasons for judgment, together with their submissions concerning the manner in which the native title is to be held as required by ss 55-57 of the Native Title Act 1993 (Cth). The court also ordered that any submissions on the matters which have been directed in these reasons for judgment to be the subject of further submissions be filed and served. The further hearing of this matter was adjourned to not before 2.15 pm on Friday, 1 June 2001.

Orders

Orders of the court

1. By 5.00 pm on Thursday, 31 May 2001 the parties file and serve:

(a) the determination of native title that they contend gives effect to these reasons for judgment, together with their submissions concerning the manner in which the native title is to be held as required by ss 55-57 of the Native Title Act 1993 (Cth);

(b) any submissions on the matters which have been directed in these reasons for judgment to be the subject of further submissions.

2. The further hearing of this matter be adjourned to not before 2.15 pm on Friday, 1 June 2001.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Rubibi applicants’ case is that the current residential use of part of the claim area is without the authority or permission of the senior Yawuru law men and is contrary to traditional Yawuru law and custom. However, the legal right of the Rubibi applicants or of the Rubibi claimant group to prevent the continuation of that use, and, if necessary, to remove the Leregon structures was not the subject of submission. A question arises as to whether those issues ought to be resolved after a determination of native title has been made or as part of the process of making that determination. Having regard to the obvious animosity that exists between the two groups, there is much to be said in favour of these issues being resolved as part of the existing dispute or controversy, rather than as a separate and subsequent controversy. In the circumstances it is appropriate to make provision for submissions on these issues, including submissions as to the manner in which the dispute is to be determined. Accordingly, my conclusions are necessarily subject to any matters that might arise as a result of those submissions.Conclusion The Rubibi applicants have established that native title exists in relation to Reserve 39631. The common or group rights comprising that native title are held by the Rubibi claimant group (including descendants of the Djugan people but excluding claimants relying solely on descent from the Goolarabooloo people) (“the claim group”) the members of whom are entitled to a determination of native title. The determination will include the following matters:(a) native title exists in relation to Reserve 30906 (“the area”);(b) the native title in relation to the area is held by the claim group, being the common law holders set out in Schedule A to the application, who are members of the traditional Yawuru community;(c) the native title held by the claim group confers upon them the right of occupation, use, possession and enjoyment of the area, as against the whole world, ‘for ceremonial purposes’;(d) the native title of the claim group includes rights of access and the following rights and interests of importance:(i)rights and interest to possess, occupy, use and enjoy the area;(ii)the right to make decisions about the use and enjoyment of the area;(iii)the right to conduct ceremonies on the area, in accordance with traditional law and customs;(iv)the right of access to the area for ceremonial purposes;(v)the right to control the access of others to the area;(vi)the right to use and enjoy the resources of the area for ceremonial purposes;(vii)the right to control the use and enjoyment of others of the resources of the area;(viii)the right to hunt and gather for ceremonial purposes;(ix)the right to manufacture ceremonial artefacts, tools and weapons from the resources of the area for ceremonial purposes;(x)the right to maintain and protect the area, as a sacred ceremonial area under traditional laws and customs; and(xi)the right to maintain, protect and prevent the misuse of the cultural knowledge within the area.The native title is subject to the following limitations or restrictions:A.To the extent that any minerals, petroleum or gas within the area of the claim are wholly owned by the Crown in the right of the Commonwealth or the State of Western Australia, they are not part of the native title rights and interests held by the claim group.B.The native title rights and interests held by the claim group do not include rights and interests which confer possession, occupation, use and enjoyment to the exclusion of all others in respect of any areas in relation to which a previous non-exclusive possession act, as defined in s 23F of the Act, was done in relation to the area, and, either the act was an act attributable to the Commonwealth, or the act was attributable to the State of Western Australia, and a law of that State has made provision as mentioned in s 23I in relation to the act.

Ratio Decidendi

Legal Principle Established

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