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Rubibi Community v Western Australia (No 7)

Rubibi Community v Western Australia (No 7)

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FEDERAL COURT OF AUSTRALIA
Rubibi Community v State of Western Australia (No 7) [2006] FCA 459
CORRIGENDUM
FRANK SEBASTIAN AND OTHERS (SEE SCHEDULE) v STATE OF WESTERN AUSTRALIA AND OTHERS (SEE SCHEDULE)
WAD 6006 of 1998 and WAD 223 OF 2004
MERKEL J
28 APRIL 2006 (CORRIGENDUM 10 MAY 2006)
BROOME (HEARD IN MELBOURNE AND BROOME)

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 6006 of 1998 and WAD 223 of 2004

BETWEEN:

FRANK SEBASTIAN AND OTHERS
(See Schedule)
APPLICANTS

AND:

STATE OF WESTERN AUSTRALIA AND OTHERS
(See Schedule)
RESPONDENTS

JUDGE:

MERKEL J

DATE OF ORDER:

28 APRIL 2006

WHERE MADE:

BROOME (HEARD IN MELBOURNE AND BROOME)

CORRIGENDUM
1In the list of appearances, counsel for the State of Western Australia, 2^nd line, replace ‘Mr’ with ‘Ms’.

I certify that the preceding paragraph is a true copy of the Corrigendum to Reasons for Judgment of the Honourable Justice Merkel.
Associate:
Dated:            10 May 2006

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

FEDERAL COURT OF AUSTRALIA
Rubibi Community v State of Western Australia (No 7) [2006] FCA 459
FRANK SEBASTIAN AND OTHERS (SEE SCHEDULE) v STATE OF WESTERN AUSTRALIA AND OTHERS (SEE SCHEDULE)
WAD 6006 of 1998 and WAD 223 OF 2004
MERKEL J
28 APRIL 2006
BROOM (HEARD IN MELBOURNE AND…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] FCA 459
Decision Date: 28 APRIL 2006

CaseChat Overview and Summary

The case of Rubibi Community v Western Australia (No 7) involved the Rubibi Community, represented by the Yawuru people, and the State of Western Australia. The dispute centred on the recognition of the Yawuru people's native title rights over their traditional lands, specifically addressing the extinguishment of these rights by certain activities and developments. The matter was heard in the Federal Court of Australia, where the court was tasked with determining whether certain parts of the Yawuru traditional country had been extinguished by activities such as the construction of a railway platform and associated tracks.

The primary legal issues before the court were whether specific activities within the Yawuru traditional lands had extinguished native title rights under the Native Title Act 1993 (Cth). The court had to assess the extent to which the construction of the railway platform and tracks, as well as other activities, had extinguished native title over certain areas. This involved detailed examination of the evidence presented regarding the nature and extent of the activities, and their impact on the native title rights.

The court's reasoning focused on the specific evidence presented regarding the activities in question. The court found that while some areas had been extinguished by the activities, others had not. Notably, the court was not satisfied that the evidence warranted a finding that the entire area in question had been extinguished. The court concluded that native title was extinguished only in respect of the areas directly affected by the railway platform and tracks, but not the entire area. This decision marked a significant milestone in the long-standing struggle of the Yawuru people to achieve recognition of their native title rights.

The court's final orders reflected the detailed findings on extinguishment. Native title was determined to be extinguished only in the areas directly affected by the construction of the railway platform and tracks, while the remainder of the area in question retained its native title rights. This outcome was a critical step in the resolution of the broader native title claim, bringing closure to a significant chapter in the recognition of indigenous rights in Australia.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MERKEL J

My ex tempore findings and reasons left as an outstanding issue (in respect of issues 21 and 22), the northern part of the area that is the subject of issue 21. I undertook a site visit to this area to assist in determining whether it would fall within s 251D of the NTA. I am not satisfied that the sparse evidence about the area warrants a finding that the whole of the area falls within s 251D. Accordingly, native title is not extinguished in respect of the northern part of the area the subject of issue 21, save for that part of that area on which the old railway platform (about 40 m sq) and the associated railway tracks (about 1600 m sq) were constructed.Conclusion The determination of native title that is now able to be made brings to an end an epic struggle by the Yawuru people to achieve recognition under Australian law of their traditional connection to, and ownership of, their country. The struggle commenced when the first application for that recognition was filed by the Yawuru claimants pursuant to the NTA on 2 February 1994. The matter proceeded in two parts. The first part related to the traditional law ground of the Yawuru community at Kunin. That proceeding involved numerous exhibits, many witnesses, voluminous evidence, a hearing over 18 days and 1488 pages of transcript. The contest in respect of the law ground required resolution of an intra-communal dispute, as well as a dispute between the Yawuru claimants and the State of Western Australia. The determination of native title, which granted exclusive possession of the law ground at Kunin to the Yawuru community, was made on 17 October 2001. Resolution of this part of the matter required two judgments. It was hoped that this resolution might enable a mediated outcome, rather than an adversarial contest, to settle the remaining part of the matter, which was the claim to the rest of the Yawuru community’s traditional country. The claim to the Yawuru community’s traditional country was not able to be resolved by mediation prior to the hearing. The resolution of that claim, which involved a further intra-communal dispute as well as a dispute with the State, WAFIC and certain other parties again involved numerous exhibits, many witnesses, voluminous evidence, a further 53 days of hearing, further transcript of over 5710 pages and five further judgments. At the conclusion of the substantive hearings in October 2004, the parties requested that the matter again be referred to mediation on the basis that there were promising prospects of a mediated outcome. After the expiration of a further 12 months, during which mediation occurred, I was not satisfied that a mediated outcome was likely to be achieved and fixed a further hearing on the outstanding 160 extinguishment issues. The earlier hearings involved evidence relating the Yawuru community’s continuing connection to its traditional country and continuing acknowledgement and observance of traditional laws and customs since 1829. The final hearings, which were held in relation to extinguishment, involved evidence of over 100 years of tenure history in the Yawuru claim area. Although many of the extinguishment issues were resolved consensually during the course of the final hearing, the remaining issues were required to be resolved in these reasons for judgment.

Ratio Decidendi

Legal Principle Established

Established by: MERKEL J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 6006 of 1998 and WAD 223 of 2004

BETWEEN:	FRANK SEBASTIAN AND OTHERS (See Schedule) APPLICANTS
AND:	STATE OF WESTERN AUSTRALIA AND OTHERS (See Schedule) RESPONDENTS
JUDGE:	MERKEL J
DATE OF ORDER:	28 APRIL 2006
WHERE MADE:	BROOME (HEARD IN MELBOURNE AND BROOME)