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Western Australia v Sebastian

Western Australia v Sebastian

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THE STATE OF WESTERN AUSTRALIA,
FRANK SEBASTIAN AND OTHERS
(ON BEHALF OF THE RUBIBI PEOPLE)
V
MARGARET ROBINSON, EDWARD ROE AND NUGGET MATSUMOTO
(ON BEHALF OF THE WALMAN YAWURU)
COMMONWEALTH OF AUSTRALIA
THANGOO PTY LTD
TELSTRA CORPORATION LIMITED
WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (INC) and
SHIRE OF BROOME
WAD 137 of 2006
SUMMARY
In accordance with the practice of the Federal Court in certain cases of public interest, the Court has prepared a Summary to accompany the judgment that is to be delivered today. However, it must be emphasised that the Summary forms no part of the judgment. The only authoritative statement of the Court’s reasons is the judgment itself.
This Summary is intended to assist in understanding the principal conclusions reached by the Court, but is necessarily incomplete. The published Reasons for Judgment and this Summary will be available on the internet align="center">The State of Western Australia v Sebastian [2008] FCAFC 65
There were two competing claims for a determination of native title in respect of land and waters in and around Broome, Western Australia.
The primary judge, Merkel J decided that the Yawuru claimants (the Rubibi people) possessed communal native title rights and interests in the whole of their claim area, and made a determination in their favour in respect of the whole of their claim area, subject to particular areas in the Broome township where native title had been extinguished. His Honour found that the competing claimants, the Walmun Yawuru, who claimed an area within the larger claim area of the Yawuru, were a sub-group of the Yawuru claimants and so did not separately possess native title rights and interests, although they held special attachments to and responsibilities for certain areas or sites within the Yawuru claim area.
On the appeal, the State argued that the northern portion of the Yawuru claim area was traditionally held by the Djugun people who were separate from the Yawuru people. The State also argued that the Yawuru claimants, because they have a cognative descent system, no longer had an interest in relation to the claim area under traditional laws and customs because traditionally they operated under a patrilineal descent system. The Full Court rejected both those contentions. On the basis of the evidence accepted by the trial judge, the Full Court concluded that the findings of the trial judge should be sustained, so the determination of native title rights and interests in favour of the Yawuru claimants will stand.
The Full Court also rejected the appeal of the Walman Yawuru. On the basis of the evidence accepted by the trial judge, the Full Court upheld the findings about the status of the Walmun Yawuru claimants and about the nature and extent of their attachment to and interest in certain sites and areas within the claim area.
There were seven separate issues raised by appeal or cross-appeal covering findings of the trial judge about the extent of extinguishment of native title rights and interests in part of the Yawuru claim…

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: [2008] FCAFC 65
Decision Date: 2 MAY 2008

CaseChat Overview and Summary

The case of Western Australia v Sebastian involved the state of Western Australia and the Yawuru claimants, who sought a determination of native title over certain areas. The dispute reached the court after the primary judge issued a determination of native title, which was subsequently appealed by the state. The court was required to decide several legal issues, including whether the Yawuru claimants occupied the disputed areas at the time of the application for a determination of native title, and whether native title had been extinguished over certain areas, including Reserve 631 and the Broome Cemetery. The court found that the primary judge had erred in concluding that Reserve 631 was validly created and that native title was wholly extinguished over the whole area of the land reserved for the Broome Cemetery. The court also found that the Yawuru claimants occupied the areas 2735, 2736, and 2738 at the time of the application for a determination of native title. The court concluded that the challenges to the primary judge's findings on the extinguishment issues failed, subject to the above findings.

The court's reasoning was based on a detailed analysis of the evidence presented and the relevant legal principles. The court found that the evidence established that the Yawuru claimants occupied the disputed areas at the time of the application for a determination of native title. The court also found that the primary judge had erred in concluding that Reserve 631 was validly created and that native title was wholly extinguished over the whole area of the land reserved for the Broome Cemetery. The court held that the native title right to determine the use of the area and rights to control access to it were extinguished, but native title had not otherwise been extinguished. The court also found that the Yawuru claimants occupied the areas 2735, 2736, and 2738 at the time of the application for a determination of native title. The court concluded that the challenges to the primary judge's findings on the extinguishment issues failed, subject to the above findings. The court found that the primary judge's approach to identifying the relevant native title holding "society" in the claim area at sovereignty was erroneous, and that as a result, his Honour erred in not finding that the Djugan and the Yawuru in fact formed two discrete "societies" at sovereignty for the purposes of the NTA. The court also found that the primary judge was correct in dismissing the Walman Yawuru claim on the basis that native title in the determination area is communal, rather than clan-based. The court held that the Walman Yawuru claimants hold some non-exclusive or exclusive rights in their claim area and that his Honour dealt appropriately with the "special attachments and responsibilities" of the Walman Yawuru people in relation to the Walman Yawuru claim area. The court concluded that the Walman Yawuru people did not acquire native title rights and interests in the Minyirr claim area by a process of succession. The court found that the primary judge was correct in determining that a non-Yawuru person can be incorporated into the Yawuru community. The court also found that the change from a patrilineal clan-based community to an ambilineal-based community was not fatal to the claim. The court concluded that the challenges to the primary judge's findings on the native title issues raised by the state and the Commonwealth failed. The court stood over the proceeding to a date to be fixed for the purpose of the making of orders giving effect to these reasons. The parties were required to provide to the Associate of Branson J by 20 May 2008 an agreed minute of the orders to be made and, if agreement had not by then been reached, the minutes of orders for which they will respectively contend and brief outlines of submission in support of the orders.

Orders

Orders of the court

1. The proceeding be stood over to a date to be fixed for the purpose of the making of orders giving effect to these reasons.

2. The parties provide to the Associate of Branson J by 20 May 2008 an agreed minute of the orders to be made and, if agreement has not by then been reached, the minutes of orders for which they will respectively contend and brief outlines of submission in support of the orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BRANSON, NORTH AND MANSFIELD JJ

In our view, contrary to the view of the primary judge, the evidence established that the Yawuru claimants occupy the areas 2735, 2736 and 2738 within the meaning of s 47B(1)(c). In accordance with the reasoning of the primary judge at [121], we infer that they occupied the areas at the time of the application for a determination of native title in the same way as they presently occupy the areas.CONCLUSIONS ON EXTINGUISHMENT ISSUES Our conclusion on the extinguishment issues raised by the Further Amended Notice of Appeal and the Amended Notice of Cross-Appeal may be summarised in the following way. We find that the primary judge erred in concluding that Reserve 631 was validly created; in our view it was not. We further find that his Honour erred in concluding that native title was wholly extinguished over the whole area of the land reserved for the Broome Cemetery; the native title right to determine the use of the area and rights to control access to it were extinguished but native title has not otherwise been extinguished. We find that his Honour erred in concluding that the Yawuru claimants did not occupy the areas 2735, 2736 and 2738, being areas at Kennedy Hill, at the time of the application for a determination of native title. Subject to the above, the challenges to his Honour’s findings on the extinguishment issues fail.Orders It is appropriate that the parties have the opportunity to consider the orders that are appropriate to be made having regard to the above reasons for judgment.

Ratio Decidendi

Legal Principle Established

Established by: BRANSON, NORTH AND MANSFIELD JJ

In relation to the native title rights and interests of the Yawuru community:· Whether, by approving and adopting the concept of “communal native title”, his Honour assumed, rather than found, that native title existed;· Whether it was open to his Honour to find, despite the fact that there were two legal “traditions” practised in the Yawuru claim area at sovereignty (northern and southern), the whole of the Yawuru claim area was possessed by the one society in the Yorta Yorta sense at sovereignty and presently; or alternatively, whether it was open to his Honour to find that rights and interests held by the Djugan people at sovereignty have become those of the Yawuru by a process of succession;· Whether it was open to the primary judge to find that the change from a patrilineal clan-based community to an ambilineal-based community was not fatal to the claim;· Whether his Honour was correct in determining that a non-Yawuru person can be incorporated into the Yawuru community;And in relation to the native title rights and interests held by the Walman Yawuru clan:· Whether his Honour was correct in dismissing the Walman Yawuru claim on the basis that native title in the determination area is communal, rather than clan based;· Whether the Walman Yawuru claimants hold some non-exclusive or exclusive rights in their claim area; and whether his Honour dealt appropriately with the “special attachments and responsibilities” of the Walman Yawuru people in relation to the Walman Yawuru claim area;· Whether, by a process of succession, the Walman Yawuru people acquired native title rights and interests in the Minyirr claim area.Additionally, a number of discrete issues of extinguishment arise as described in more detail below, including issues as to whether any prior extinguishment of native title in parts of the Broome townsite should be disregarded pursuant to s 47B of the NTA.CONSIDERATION OF NATIVE TITLE ISSUESNative title rights of the Yawuru communityThe Djugan and the Yawuru The first issue arising on the State’s appeal concerns the primary judge’s finding that the Djugan people were a subset, or subgroup, of the Yawuru community at sovereignty and presently, and consequently that the Yawuru community hold native title rights and interests over the northern portion of the Yawuru claim area (the portion traditionally associated with the Djugan). There are two aspects to the State’s challenge to his Honour’s reasoning in this respect. It is said firstly that by focussing on the Yawuru “community” and by characterising the claim as one for “communal native title”, his Honour failed to identify the relevant native title holding “society” in the claim area at sovereignty as required by Yorta Yorta. The State then submits that as a result of that erroneous approach, his Honour erred in not finding that the Djugan and the Yawuru in fact formed two discrete “societies” at sovereignty for the purposes of the NTA. To properly address the issues raised by the State and the Commonwealth, it is convenient here to identify the characteristics of “native title” as provided for in s 223 of the NTA.Native title rights and interests: ss 223 and 225