Western Australia v Sebastian

[2008] FCAFC 65

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 area. 

Two issues are of general significance. One is whether s 47B of the Native Title Act 1993 (Cth) could be applied to the area of the Broome town site so as to be available to save any native title rights and interests within the Broome town site from being extinguished simply by the proclamation of the township of Broome. The Full Court has affirmed the decision of the trial judge that s 47B was capable of applying to areas within the proclaimed township. Secondly, the Yawuru claimants cross-appealed against the finding that any native title rights and interests in that part of the intertidal zone of the determination area as vested in The Minister for Transport pursuant to s 9 of the Marine and Harbours Act 1981 (WA) were thereby extinguished. The Full Court agreed with the conclusion of the trial judge.

The remaining issues concerning extinguishment concerned findings of fact by the trial judge upon which native title rights and interests were extinguished in certain parts of the Broome town site.  The findings have been upheld by the Full Court save for conclusions that Reserve 631 had been validly declared, that native title had been wholly extinguished over the whole of the area reserved for the Broome Cemetery, and that the Yawuru claimants did not occupy areas 2735, 2736 and 2738 at Kennedy Hill when this application was made.

The Full Court has allowed the parties some time to consider its reasons and to propose the form of orders which should be made to give effect to them.

FEDERAL COURT OF AUSTRALIA

The State of Western Australia v Sebastian [2008] FCAFC 65

NATIVE TITLE – two competing claims for determination in respect of land and waters in and around Broome, Western Australia – first instance determination made in favour of Yawuru claimants – appeal and cross appeal from first instance native title determination of single judge

NATIVE TITLE – Yawuru claimants – issues of existence of native title – whether primary judge assumed existence of native title by approval or adoption of a “communal native title” approach – issues of evolution from patrilineal to ambilineal descent – consideration of potential occurrence of succession – consideration of traditional rules of incorporation/adoption

NATIVE TITLE –Walman Yawuru claimants – whether the dismissal of claim was correct on the basis that native title in the determination area is communal – consideration of “special attachments and responsibilities” under ss 223, 253 of the Native Title Act 1993 (Cth) – consideration of non-exclusive and exclusive rights– consideration of issues of succession

NATIVE TITLE – issues of extinguishment – whether valid creation of reserves –whether extinguishment by reservation of land – consideration of rights to determine use and control access to land – public works and rights asserted by the Crown –application of ss 47A, 47B of the Native Title Act 1993 (Cth) – valid vesting of rights under statute

Native Title Act 1993 (Cth) ss 47A, 47B, 68, 211, 223, 225, 228,253, 285
Racial Discrimination Act 1975 (Cth) s 10(1)
Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) ss 4, 7, 12, 23, 12I, 121, 251D
Land Act 1898 (WA) ss 7, 8, 39
Marine and Harbours Act 1981 (WA) ss 8, 9, 10, 12, 22

Cemeteries Act 1897 (WA) ss 10, 18, 22
Land Regulations 1894 (WA) regs 32
Land Regulations 1882 (WA) regs 3, 29, 30, 35, 38
Municipal Corporations Act 1906 (WA) s 212
Public Works Act 1902 (WA)
Waterworks Act 1932 (SA) s 10(1)

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424
Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1
Commissioner of the Australian Federal Police v Oke [2007] FCAFC 94
Commonwealth v Yarmirr (2001) 208 CLR 1
Dale v Moses [2007] FCAFC 82
Daniel v Western Australia (2004) 138 FCR 254
De Rose v South Australia (No 1) (2003) 133 FCR 325
De Rose v South Australia (No 2) (2005) 145 FCR 290
Griffiths v Northern Territory of Australia [2007] FCAFC 178
Gumana v Northern Territory of Australia [2007] FCAFC 23
Hayes v Northern Territory (1999) 97 FCR 32
Kokatha People v State of South Australia [2007] FCA 1057
The Lardil Peoples v State of Queensland [2004] FCA 298
Mabo v Queensland (No 2) (1992) 175 CLR 1
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422
Moses v State of Western Australia [2007] FCAFC 78
Neowarra v State of Western Australia [2003] FCA 1402
New South Wales v Commonwealth (1975) 135 CLR 337
Northern Territory of Australia v Alyawarr, Kayteye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442
Rubibi Community (No 5) v State of Western Australia [2005] FCA 1025
Rubibi Community v Western Australia (2001) 112 FCR 409
Rubibi Community v State of Western Australia(No 2) (2001) 114 FCR 523
Rubibi Community v State of Western Australia (No 7) [2006] FCA 459
Rubibi Community v Western Australia (No 6) (2006) 226 ALR 676
Sampi v Western Australia (No 2) [2005] FCA 1567
South Australia v Tanner (1989) 166 CLR 161
Sydney Harbour Trust Commissioners v Harriott (1923) 32 CLR 53
Transurban City Link v Allan (1999) 95 FCR 553
Ward v State of Western Australia (1998) 159 ALR 483
State of Western Australia v Ward (2002) 213 CLR 1
Western Australia v Ward (2000) 99 FCR 316

THE STATE OF WESTERN AUSTRALIA v FRANK SEBASTIAN AND OTHERS (ON BEHALF OF THE RUBIBI PEOPLE), 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

BRANSON, NORTH AND MANSFIELD JJ
2 MAY 2008
ADELAIDE (VIA VIDEOLINK TO PERTH & MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 137 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

THE STATE OF WESTERN AUSTRALIA
Appellant/First Cross-Respondent

AND:

FRANK SEBASTIAN AND OTHERS (ON BEHALF OF THE RUBIBI PEOPLE)
First Respondent/First Cross-Appellant

MARGARET ROBINSON, EDWARD ROE AND NUGGET MATSUMOTO (ON BEHALF OF THE WALMAN YAWURU)
Second Respondent/Second Cross-Appellant

COMMONWEALTH OF AUSTRALIA
Third Respondent

THANGOO PTY LTD
Fourth Respondent

TELSTRA CORPORATION LIMITED
Fifth Respondent

WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (INC)
Sixth Respondent

SHIRE OF BROOME
Second Cross-Respondent

JUDGES:	BRANSON, NORTH AND MANSFIELD JJ
DATE OF ORDER:	2 MAY 2008
WHERE MADE:	ADELAIDE (VIA VIDEOLINK TO PERTH & MELBOURNE)

THE COURT ORDERS THAT:

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.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 137 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

THE STATE OF WESTERN AUSTRALIA
Appellant/First Cross-Respondent

AND:

FRANK SEBASTIAN AND OTHERS (ON BEHALF OF THE RUBIBI PEOPLE)
First Respondent/First Cross-Appellant

MARGARET ROBINSON, EDWARD ROE AND NUGGET MATSUMOTO (ON BEHALF OF THE WALMAN YAWURU)
Second Respondent/Second Cross-Appellant

COMMONWEALTH OF AUSTRALIA
Third Respondent

THANGOO PTY LTD
Fourth Respondent

TELSTRA CORPORATION LIMITED
Fifth Respondent

WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (INC)
Sixth Respondent

SHIRE OF BROOME
Second Cross-Respondent

JUDGES:	BRANSON, NORTH AND MANSFIELD JJ
DATE:	2 MAY 2008
PLACE:	ADELAIDE (VIA VIDEOLINK TO PERTH & MELBOURNE)

REASONS FOR JUDGMENT

TABLE OF CONTENTS

INTRODUCTION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [1]

Approach adopted by primary judge........ ........ ........ ........ ........ ........ ........ ........ ........ ..... [10]

THE APPEALS AND CROSS APPEAL........ ........ ........ ........ ........ ........ ........ ........ ........ ... [18]

The combined issues........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . [23]

CONSIDERATION OF NATIVE TITLE ISSUES........ ........ ........ ........ ........ ........ ........ ... [25]

Native title rights of the Yawuru community........ ........ ........ ........ ........ ........ ........ ........ [25]

The Djugan and the Yawuru........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... [25]
Native title rights and interests: ss 223 and 225........ ........ ........ ........ ........ ........ ........ .... [27]
The findings of the primary judge regarding the possession of native title rights and interests by the Yawuru community and the status of the Djugan people........ ........ ........ ........ ........ ........ ........ .... [37]
The alleged error of the primary judge regarding communal native title and the status of the Djugan people........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [54]
Did his Honour find or assume that native title existed?........ ........ ........ ........ ........ ....... [66]
Did his Honour err in finding that the Djugan were a subset or subgroup of the Yawuru community?........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [79]
The alternative finding: succession of rights........ ........ ........ ........ ........ ........ ........ ........ . [94]

The descent system of the Yawuru community........ ........ ........ ........ ........ ........ ........ ... [105]
Adoption/incorporation into the Yawuru community........ ........ ........ ........ ........ ........ [123]
Native title rights of the Walman Yawuru clan........ ........ ........ ........ ........ ........ ........ ... [142]

Lay evidence, anthropological evidence and findings regarding Walman Yawuru country [142]
The alleged errors of the primary judge........ ........ ........ ........ ........ ........ ........ ........ ...... [149]
Did the primary judge misunderstand the basis of the Walman Yawuru claim?........ . [154]
The claim of non-exclusive native title rights in Walman Yawuru clan country........ . [157]
The alternative contention: a rule of trespass and permission........ ........ ........ ........ .... [171]
Consideration of the claim to non-exclusive, or alternatively exclusive, rights........ .. [173]
The Minyirr claim area........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [187]

CONCLUSION ON NATIVE TITLE ISSUES........ ........ ........ ........ ........ ........ ........ ....... [192]
CONSIDERATION OF EXTINGUISHMENT ISSUES........ ........ ........ ........ ........ ........ [193]

Reserves 2551 and 15019 – Appeal Ground 5........ ........ ........ ........ ........ ........ ........ ..... [193]
The Broome town site – Appeal Ground 8........ ........ ........ ........ ........ ........ ........ ........ ... [209]
The Intertidal Zone – Cross‑Appeal Ground 7........ ........ ........ ........ ........ ........ ........ ... [228]
Reserve 631 – Cross Appeal Ground 8........ ........ ........ ........ ........ ........ ........ ........ ........ . [242]
Broome Cemetery Reserve 1647 – Cross-Appeal Grounds 9 & 10........ ........ ........ ... [254]
McMahon Oval Reserve 41551 – Cross-Appeal Ground 11........ ........ ........ ........ ...... [270]
Occupation for the purpose of s 47A and s 47B – Cross-Appeal Ground 12........ ... [280]

CONCLUSIONS ON EXTINGUISHMENT ISSUES........ ........ ........ ........ ........ ........ .... [306]
Orders........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [307]

THE COURT

INTRODUCTION

1. The learned primary judge (Merkel J) heard and determined two competing claims for a determination of native title in respect of land and waters in and around Broome, Western Australia.  The first claim which, like his Honour, we will call the “Yawuru claim”, was made by twelve named individuals (“the Yawuru claimants”) on behalf of the Yawuru community.  The claim was for communal native title rights and interests in respect of land and waters in the area depicted in Annexure A to these reasons for judgment (“the Yawuru claim area”).  The Yawuru claim area, in general terms, commenced at Bungarrangarra, going north to Willie Creek and then east to Garawan. The western boundary of the Yawuru claim area ran along the Western Australian coast, including the intertidal zone (that is, the land on the seaward side of the high water mark, but not beyond the lowest astronomical tide and the sea above it).  The Yawuru claim area is largely made up of pastoral leases and unallocated Crown land and reserves, and includes the Broome townsite. The Yawuru claim area can usefully be understood to comprise three sub-areas, namely, the Yawuru clan claim area, the Walman Yawuru clan claim area and the Minyirr clan claim area. 

2. The competing claim (“the Walman Yawuru claim”) was made by three named individuals on behalf of a subset of the Yawuru community, namely the Walman Yawuru clan.  The Walman Yawuru claimants opposed the claim of the Yawuru claimants on the basis that native title in the Yawuru claim area is a clan, rather than a communal, native title.  They claimed group native title rights and interests in respect of the Walman Yawuru claim area on behalf of the Walman Yawuru clan.  The Walman Yawuru claim area was wholly within the Yawuru claim area, located in its north-eastern portion (including part of the Broome townsite) and abutting the coast line, including the intertidal zone, at Roebuck Bay. The Walman Yawuru claimants additionally claimed that they had traditional custodianship of the lands and waters of the Minyirr clan (their immediate Western neighbours) over the Minyirr claim area as a consequence of the Minyirr people having died out in the early years of the 20^th century.

3. The Walman Yawuru claimants were respondents to the Yawuru claim. On 16 December 2004, after the completion of the evidence and the hearing of submissions (other than as to extinguishment) in the Yawuru claim, the Walman Yawuru claimants filed a separate native title determination application in respect of their claim area, WAD 285/2004. That application was determined concurrently with the Yawuru claim on 28 April 2006.

4. Each of the competing claims was opposed by the State of Western Australia, the Commonwealth and the Western Australian Fishing Industry Council Inc (“WAFIC”).  The State and the Commonwealth, contended, in effect, that neither claim group could demonstrate that it possessed rights and interests in any land or waters in the Yawuru claim area under a normative system of traditional laws and customs which has had a continuous existence and vitality since sovereignty (see Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 (“Yorta Yorta”) at [47]). WAFIC sought to protect the inter-tidal zones in the claim area from any determination of native title.

5. We note, incidentally, that all parties proceeded at trial and on appeal on the basis that the relevant date on which the Crown assumed sovereignty over the claimed land and waters was 1829.  That is clearly so in respect of land above the high water mark.  It is not so clear in respect of land and waters between the high water mark and the low water mark (New South Wales v Commonwealth (1975) 135 CLR 337 (Seas and Submerged Lands Case)).  However, in view of the common approach adopted by the parties, it is unnecessary for us to reach a concluded view on this question.  In this matter nothing turns on any difference to the date of sovereignty in respect of different parts of the Yawuru claim area.

6. The State, the Commonwealth, WAFIC, the Shire of Broome and others also presented cases in respect of extinguishment issues.

7. On 28 April 2006 Merkel J made orders including an order that there be a native title determination in favour of the Yawuru community (Rubibi Community v State of Western Australia (No 7) [2006] FCA 459 (Rubibi (No 7)).  The terms of the determination were recorded in an attachment to the orders made by his Honour.  This attachment, which is headed “Rubibi Native Title Determination No 2” is Annexure B to these reasons for judgment.

8. The explanation for the determination being described by his Honour as Rubibi Native Title Determination No 2 is found in an earlier determination made by his Honour in favour of the Yawuru community (see Rubibi Community v State of Western Australia (No 2) (2001) 114 FCR 523). The Second Schedule of that determination defines the Yawuru Community as the descendants of certain named apical ancestors. A nearly (but not completely) identical list of apical ancestors appears in Schedule 1 of Rubibi Native Title Determination No 2. It is to be understood that the native title holders under the two determinations are the same persons.

1. The earlier determination made by his Honour in favour of the Yawuru community concerned a disputed claim for native title in respect of a reserve on the outskirts of the Broome township.  His Honour was satisfied that the reserve was a traditional Aboriginal law ground of the Yawuru community (see Rubibi Community v Western Australia (2001) 112 FCR 409 (Rubibi (No 1)).  In understanding the approach that his Honour adopted in respect to the competing claims the subject of this appeal, it may be necessary to bear in mind that in Rubibi (No 1) his Honour gave consideration to whether the present Yawuru community is an identifiable traditional community that has continued, as such, to maintain a traditional connection since 1829 with the land the subject of the claim made in that case (see Rubibi (No 1) at [102]).  His Honour at [161] determined that it was.

   Approach adopted by primary judge

2. On 29 July 2005 Merkel J published ‘reasons’ concerning the competing claims (see Rubibi Community (No 5) v State of Western Australia [2005] FCA 1025 (Rubibi (No 5)).  At [12]-[13] of those reasons his Honour noted that at the conclusion of the hearing the Yawuru claimants and the State had requested that the matter be referred to mediation and that the mediation was continuing.  His Honour recorded:

   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.

3. In Rubibi (No 5) Merkel J concluded at [376] 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;

   (b)are not the group native title rights and interests claimed to be possessed by members of the Walman Yawuru clan members.

4. The matter did not resolve by agreement.

5. On 13 February 2006 Merkel J published reasons for judgment on three issues which his Honour identified as outstanding, but deferred consideration of issues of extinguishment (see Rubibi Community v Western Australia (No 6) (2006) 226 ALR 676 (“Rubibi (No 6)”).  The issues determined by his Honour in Rubibi (No 6) were identified by him at [11] as follows:

   (a)the identification of the native title determination area;

   (b)the criteria for membership of the native title holding community; and

   (c)the nature and extent of the native title rights and interests possessed by the native title holding community.

6. Merkel J concluded in Rubibi (No 6) at [96] that the Yawuru community possesses communal native title rights and interests in the whole of the Yawuru claim area. At [98], his Honour noted that the main dispute in relation to membership of the Yawuru community related to people known as Goolarabooloo. At [109] his Honour held that the Goolarabooloo as such are not members of the Yawuru native title holding community. There was also an issue about whether the Djugan people were a clan of the Yawuru community or “a native title holding community in their own right”; and, if they were a separate community, whether the northern parts of the Yawuru claim area were in fact part of the country of the Djugan community. His Honour found that the Djugan were a “subset or subgroup” of the Yawuru community and therefore the determination of native title should extend over both the northern and southern parts of the Yawuru claim area. At [118] his Honour expressed his satisfaction that, generally, the evidence supported the inference contended for by the Yawuru claimants of exclusive possession and occupation of the Yawuru claim area (excluding the intertidal zone) where there has been no extinguishment.

7. On 28 April 2006 Merkel J published reasons for judgment in Rubibi (No 7) determining the areas within the Yawuru claim area in respect of which the native title rights and interests of the Yawuru claimants had been wholly or partially extinguished and additionally dealing with certain discreet issues raised by one or other of the parties after the publication of Rubibi (No 6).  At the same time his Honour made the determination of native title referred to above (see [7] and Annexure B to these reasons).

8. In relation to the Walman Yawuru claim, his Honour found that the traditional laws and customs relied upon by the Walman Yawuru claimants were the traditional laws and customs of the Yawuru community; the Walman Yawuru people being a sub-group of that community.  While his Honour was satisfied that the Walman Yawuru people held special attachments to, and responsibilities for, areas or sites with which the clan was associated, he found that those special attachments and responsibilities did not constitute a native right or interest in all or part of the Walman Yawuru claim area. Members of the clans constituting the Yawuru community were found not to possess native title rights and interests in the determination area in their capacity as clan members.

9. The claim of the Walman Yawuru people thus failed, although his Honour did find that the Walman Yawuru people held communal native title rights and interests in the determination area in their capacity as members of the Yawuru community. The dismissal of the Walman Yawuru claim necessarily lead to a rejection of the Walman Yawuru claim to the Minyirr claim area, that claim being similarly based upon an assertion that native title in the determination area was clan-based, rather than communal.

   THE APPEALS AND CROSS APPEAL

10. The grounds of appeal and cross appeal are extensive, but may be briefly summarised as follows.

11. The State has appealed against his Honour’s finding that native title exists in the Yawuru claim area, particularly in its northern portion which is said to have been traditionally owned by a separate society, the Djugan people. The State has also appealed against the orders of the primary judge on the basis that it was not open to his Honour to hold that a change in descent rules to an ambilineal, or cognatic, system was permitted under the traditional laws and customs of the Yawuru community. In addition, the State appeals against the findings of the primary judge on two further grounds concerned with the validity of certain Reserves and the applicability of s 47B of the Native Title Act 1993 (Cth) (the NTA) to parts of the proclaimed area of the Broome townsite. The respondents to the State’s appeal are the Yawuru claimants, the Walman Yawuru claimants, the Commonwealth, Thangoo Pty Ltd, Telstra Corporation, and WAFIC. Thangoo Pty Ltd and Telstra Corporation did not participate in the hearing of the appeal.

12. The Yawuru claimants have cross-appealed in respect of certain specific findings regarding extinguishment.  The respondents to the Yawuru cross-appeal are the State, the Commonwealth, the Shire of Broome and WAFIC.

13. The Walman Yawuru claimants appeal against the dismissal of their application for a determination of group or clan-based native title over the Walman Yawuru claim area and the Minyirr claim area.  The respondents to the Walman Yawuru cross-appeal are the Yawuru claimants and the State.

14. The appeals and the cross-appeal were heard together.

    The combined issues

15. Prior to the hearing of the appeals and the cross-appeal, the parties jointly identified 16 consolidated issues arising for determination by this Court.  Those issues will be identified and considered below, other than those issues which were abandoned by parties prior to or at the hearing of the appeals and the cross-appeal.  Broadly, the consolidated issues raise the following matters:

16. 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 ISSUES

    Native title rights of the Yawuru community

    The Djugan and the Yawuru

17. 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.

18. 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

19. It is to the terms of the NTA that the Court must turn its mind in determining whether native title exists over a particular area: see Western Australia v Ward (2002) 213 CLR 1 (Ward (HC)) at [16], [25]; Commonwealth v Yarmirr (2001) 208 CLR 1 (Yarmirr) at [7]. The key provisions for present purposes are ss 223 (defining “native title”) and 225 (setting out the requirements of a determination of native title). Section 223(1) 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.

20. Section 225 of the NTA defines a “determination of native title” as

    … 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.

    Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non‑native title interests.

21. “[T]raditional laws acknowledged, and…traditional customs observed”, within the meaning of s 223(1)(a), are central to the definition of native title. The nature of those traditional laws and customs which may be productive of native title rights in accordance with the NTA was discussed by the High Court in Yorta Yorta.  It was determined in Yorta Yorta that the laws and customs of which s 223 speaks must have a normative quality, so that the body of traditional laws and customs may equally be described as a “body of norms” or a “normative system”: see at [37]-[42]. To be “traditional” the laws and customs must be passed from generation to generation; their content must originate in pre-sovereignty rules; and they must have had a continuous existence and vitality since sovereignty: at [46]-[47]. The laws and customs must provide a “connection” between Aboriginal peoples and their claimed land and waters: s 223(1)(b). Only traditional laws and customs having those characteristics may give rise to native title rights and interests.

22. “Inextricably linked” to the concept of traditional laws and customs is the body of Aboriginal peoples who acknowledge and observe them: Yorta Yorta at [55]. The word “society” was employed by Gleeson CJ, Gummow and Hayne JJ as a descriptor of the Aboriginal peoples who may possess native title rights under traditional laws and customs in accordance with the definition in s 223. In an oft-quoted passage from [49] the joint judgment in Yorta Yorta (HC), their Honours said:

    Laws and customs do not exist in a vacuum. They are, in Professor Julius Stone’s words, ‘socially derivative and non-autonomous’…Law and custom arise out of and, in important respects, go to define a particular society. In this context, ‘society’ is to be understood as a body of persons united in and by its acknowledgment and observance of a body of laws and customs.
    (footnotes omitted)

    In the footnote to the final sentence quoted above their Honours said “[w]e choose the word ‘society’ rather than ‘community’ to emphasise this close relationship between the identification of the group and the identification of the laws and customs of that group.”

23. The native title rights and interests possessed under such traditional laws and customs may be communal, group or individual in nature: s 223(1).

24. Following the decision in Yorta Yorta, the characteristics of native title rights and interests and the persons who may possess them have been further expanded upon by the Full Court of this Court in Northern Territory of Australia v Alyawarr, Kayteye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 (“Alyawarr (FC)”), De Rose v South Australia (No 1) (2003) 133 FCR 325 (“De Rose (No 1)”) and De Rose v South Australia (No 2) (2005) 145 FCR 290 (“De Rose (No 2)”).

25. Relevantly for the purposes of this appeal, the Court made the following observations in De Rose (No 2) regarding the nature of the native title rights and interests which may be claimed under the NTA:

    [29]As the High Court observed in Ward (HC), at [16], the drafting of pars (a) and (b) of s 223(1) is based on what was said by Brennan J in Mabo v Queensland (No 2) (1992) 175 CLR 1 (‘Mabo (No 2)’), at 70. The chapeau to s 223(1) also reflects his Honour’s language. Brennan J said (at 61) that native title rights and interests may be protected by appropriate legal and equitable remedies, whether the rights are ‘possessed by a community, a group or an individual’. Earlier, he stated that a proprietary community title is capable of recognition by the common law, and, that being so (at 52):

    ‘there is no impediment to the recognition of individual non-proprietary rights that are derived from the community’s laws and customs and are dependent on the community title.  A fortiori, there can be no impediment to the recognition of individual proprietary rights.’

    [30]What was said in Mabo (No 2) cannot control the interpretation of s 223(1), although it may be taken into account. The reference to ‘communal, group or individual rights and interests’ in the chapeau to s 223(1) recognises that native title may include not only communal rights and interests, but group or individual rights or interests, provided they are ‘in relation to land or waters’: Yorta Yorta, at [33]. The fact that a claimant seeks to establish what a court might classify as individual rights and interests in relation to a claim area, as distinct from what might be classified as communal or group rights and interests, therefore will not preclude that claimant from succeeding in an application for a native title determination. In that sense, the language of s 223(1) of the NTA is intended to extend the definition of native title to cover all kinds of rights and interests in relation to land or waters that are possessed under the traditional laws acknowledged and customs observed by the Aboriginal peoples.

    [31]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].

    …

    [38]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.

1. In Alyawarr (FC) Wilcox, French and Weinberg JJ identified as one of the basic propositions from Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo (No 2)) that “native title … is communal in character although it may give rise to individual rights”: at [66]. Their Honours were of the view that the various aspects of the definition of native title in s 223 of the NTA “have their origin in Mabo (No 2) and could not have been intended to undercut the fundamental principle of the communal character of native title”.

2. In a passage criticised by the State in this appeal, the Court in Alyawarr (FC) said the following in relation to native title that is “communally” held:

   [78]The elements of a determination of native title are set out in s 225. It requires a determination of ‘who the persons, or each group of persons, holding the common or group rights comprising the native title are’. That requires consideration of whether the persons said to be native title holders are members of a society or community which has existed from sovereignty to the present time as a group, united by its acknowledgement of the laws and customs under which the native title rights and interests claimed are said to be possessed. That involves two inquiries. The first is whether such a society exists today. The second is whether it has existed since sovereignty. The concept of a ‘society’ in existence since sovereignty as the repository of traditional laws and customs in existence since that time derives from the reasoning in Yorta Yorta. The relevant ordinary meaning of society is ‘a body of people forming a community or living under the same government’ – Shorter Oxford English Dictionary. It does not require arcane construction. It is not a word which appears in the NT Act. It is a conceptual tool for use in its application. It does not introduce, into the judgments required by the NT Act, technical, jurisprudential or social scientific criteria for the classification of groups or aggregations of people as ‘societies’. The introduction of such elements would potentially involve the application of criteria for the determination of native title rights and interests foreign to the language of the NT Act and confining its application in a way not warranted by its language or stated purposes.

   [79]The determinations which may be made under s 225 cover a range of possibilities which depend upon the nature of the society said to be the repository of the traditional laws and customs that give rise to the native title rights and interests claimed. In some cases the members of the community identified as the relevant society may enjoy communal ownership of the native title rights and interests, albeit they are allocated intramurally to particular families and clans. This was the case in Sampi v State of Western Australia [2005] FCA 777. The relevant community in that case was geographically confined to the Dampier Peninsula. Lawmen had global responsibilities encompassing law grounds in each of the clan estates. There was an area accessible to all members of the community and regency arrangements in relation to vacant estates. The traditional laws and customs, as explained in the evidence, supported a principle of communal ownership.

   [80]If, on the other hand, the society identified as the repository of the traditional laws and customs is a cultural bloc whose members are dispersed in groups over a large arid or semi-arid area an inference of communal ownership of native title rights and interests derived from its laws and customs may be difficult if not impossible to draw.  In De Rose v State of South Australia (No 2) [2005] FCAFC 110 the Court held that a native title determination could be made in favour of individuals or small groups who held native title rights under the traditional laws and customs of a society or community of which they are part. That was identified as the Western Desert Bloc. It was not necessary that the native title holders constituted a society or community in their own right. Each case will, of course, depend upon its own facts.

3. The State, supported by the Commonwealth, submitted on this appeal that in each of De Rose (No 1), De Rose (No 2) and Alyawarr (FC), the Full Court of this Court “introduced analyses and concepts that are not in accordance with the key principles in Yorta Yorta.” It will be necessary to consider that submission below.

   The findings of the primary judge regarding the possession of native title rights and interests by the Yawuru community and the status of the Djugan people

4. The primary judge described the claim of the Yawuru claimants as “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.” He recorded the Yawuru claimants’ contention that they were “a body of persons united in and by its acknowledgment and observance of a body of traditional laws and customs” in the sense required by Yorta Yorta: see Rubibi (No 5) at [18].

5. His Honour concluded in Rubibi (No 5) that that contention was made out on the evidence. His findings in this respect are conveniently summarised at [366]-[367] of the reasons for judgment:

   [366]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.

   [367]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.

6. The State, at least on this aspect of its appeal, did not challenge those conclusions insofar as his Honour found that native title was held by the Yawuru community in the southern part of the Yawuru claim area, in accordance with the law as laid down in the southern tradition. The further findings of the primary judge in relation to the role of the Djugan people in relation to the Yawuru community and the possession by that community of native title rights and interests in the northern portion of the claim area, however, have been contested on appeal.

7. The primary judge considered the status of the Djugan people in Rubibi (No 6) and concluded that the Djugan were a subset or subgroup of the Yawuru community at and since sovereignty; and, as their numbers declined during the twentieth century, the Djugan were “absorbed” into the broader Yawuru community. A result of that absorption was that the practice of the northern tradition, characterised by his Honour as “the acknowledgement and observance of some of the discrete traditional laws and customs” of the native title holding community, was substantially replaced by the practice of the southern tradition by the Yawuru community: Rubibi (No 6) at [82]-[83] (emphasis added).

8. It was common ground at first instance that historically the Yawuru community (practising the southern tradition) has been associated with the “southern area” and the Djugan community (practising the northern tradition) has been associated with the “northern area”.  The primary judge described the northern and southern traditions as “distinct mytho-ritual traditions with their own law grounds in the Yawuru claim area and with their own senior law men responsible for those grounds.”  He found, however, that “each of the traditions is underpinned by and derived from the one source, which is a common belief in the Bugarrigarra”.  His Honour found that although the northern and southern traditions were culturally distinct, many of their traditional laws and customs were the same or substantially the same; and the traditional laws and customs acknowledged and observed by the Yawuru community provided for the practice of the northern and southern traditions in the Yawuru claim area: Rubibi No 6 at [52].

9. The primary judge noted that “as a result of European contact, the Djugan disintegrated as an identifiable group and became unable to sustain their own legal and cultural tradition.” However, he accepted the submission of the Yawuru claimants that

   The nature of [the Djugan population] collapse was not such that all Djugan people were wiped out or that all features of their culture were destroyed. There are to the present day some living Djugan, and these form part of the Yawuru and are represented in the claimant group. However, the Djugan had to rely upon members of the Yawuru to maintain the basis of their traditional law and culture and, over time, the relationship between the Djugan and the Yawuru evolved to the point where one social grouping remained, the Yawuru.

10. His Honour found that the Djugan was designated by the Bugarrigarra as “a subset or subgroup of the Yawuru speaking community at and since sovereignty”.  He expressed his findings in relation to the Djugan at Rubibi (No 6) at [82]-[84]:

    [82]I have concluded on the balance of probabilities that, irrespective of whether in anthropological terms they were correctly designated to be separate tribes, the extensive connections and commonalities between the Djugan and the Yawuru (including their common Yawuru language) resulted in the Djugan being designated by the Bugarrigarra as a subset or subgroup of the Yawuru speaking community at and since sovereignty.  In my view, that community was united in and by its acknowledgement and observance of a body of laws and customs that each community’s members believed had been laid down by the Bugarrigarra, in so far as those laws and customs related to Yawuru country.  By those laws and customs, which are the specific laws and customs I described in the interim reasons, the Yawuru community established and maintained the requisite connection, at and since sovereignty, with both the northern and southern areas (including the intertidal zone) of the claim area.

    [83]As a result of the absorption of the Djugan into the broader Yawuru community during the twentieth century, the practice of the northern tradition by descendants of the Djugan is likely to have been substantially replaced by the practice of the southern tradition by the Yawuru community throughout the claim area.  However, I do not regard that as detracting from the entitlement of the Yawuru community to native title in relation to Yawuru country. The reason for that conclusion is that the cessation of the practice of the northern tradition by part of the Yawuru community is no more than a cessation of the acknowledgment and observance of some of the discrete traditional laws and customs acknowledged and observed by one of the subgroups constituting the native title holding community.  Further, I am satisfied that the continuity of the practice of the southern tradition provided a continuity of the practice of the traditional laws and customs that provide the foundation for the Yawuru community’s entitlement to native title in the Yawuru claim area.  In that regard it is relevant, as was observed by Palmer, that the two traditions shared much in common in relation to their respective traditional laws and customs.

    [84]For the above reasons, I have concluded that the relevant community possessing communal native title at and since sovereignty is the Yawuru community, of which the Djugan is a subset or subgroup.

11. His Honour was thus satisfied that the Yawuru community possessed communal native title rights and interests in the northern, as well as the southern, areas (that is, the entire Yawuru claim area, subject to those parts in which native title was found to have been extinguished).

12. In the event that (contrary to his Honour’s view) the Djugan did have discrete rights or interests in the northern area the primary judge found that under the traditional laws and customs of the Yawuru community, the Yawuru community succeeded to those rights or interests. His Honour was satisfied, on the basis of the anthropological evidence and the evidence of the Yawuru elders, that principles of succession formed part of the northern and southern traditions practiced in the Yawuru claim area.  He further said that whether there has been such a succession is a question of fact.  He concluded in Rubibi (No 6) at [94]) that

    The extensive connections and commonalities between the Djugan and the Yawuru, which led me to conclude that they formed one native title holding community, also lead me to conclude that, over time and in accordance with the traditional laws and customs acknowledged and observed by the Yawuru community (including the Djugan as a subset of that community), that community succeeded to any discrete or specific connection or association the Djugan had with the northern area. In this context, I have used the concept of a connection or association, rather than that of a native title right or interest, because of my view that such rights and interests were communal, rather than group rights or interests. However if, and to the extent that, the Djugan had any such rights or interests, I am satisfied that the Yawuru community has succeeded to them. In my view, the general requirements for succession to take place in accordance with traditional laws and custom, as discussed by the three anthropologists, have been sufficiently met by the connections and commonalities to which I have referred. Consequently, I am satisfied that the evidence supports a finding of succession by the Yawuru community.

13. The findings of the primary judge regarding the role of the Bugarrigarra, the practice of the northern and southern traditions in the Yawuru claim area and the relationship between the Djugan and the Yawuru were as follows. In his reasons for judgment in Rubibi (No 5) the primary judge described the Bugarrigarra as the “source” of the traditional laws and customs claimed to have been observed and acknowledged by the Walman Yawuru clan and the Yawuru community; constituting “the core of the cultural and spiritual existence of the Yawuru community and of the respective clans comprising the Yawuru community”: at [49]. His Honour also stated at [53] that the religious and spiritual connection of the Yawuru community to their country flows from the Bugarrigarra. At [50]-[51] his Honour set out the following evidence regarding the nature of the Bugarrigarra:

    [50]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.’

    [51]A similar explanation was proffered at the present hearing by Palmer [an anthropologist], 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.’

    [52]     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.’

14. One of the State’s contentions is that the primary judge confused the roles of the Bugarrigarra and the northern and southern traditions in the Yawuru claim area. His Honour made the following observations about the northern and southern traditions (see Rubibi (No 5) at [55]-[61] and [79]):

    [55]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.

    [56]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.’

    [57]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)

    [58]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.

    [59]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].’

    [60]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.’

    [61]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.

    …

    [79]…The evidence referred to above establishes that, on balance, ‘the law’ is still acknowledged and observed, notwithstanding that many of the rituals of ‘the law’ are no longer practiced.  Fundamentally, ‘the law’, as laid down by the southern tradition, remains ‘the law’ that is acknowledged and accepted by the Yawuru community as governing all aspects of its traditional life.

1. The primary judge described the “northern area” as “the area in, adjacent to and north of Broome and extending to Willie Creek”: Rubibi (No 6) at [16].

2. Having considered the evidence regarding the relationship between the Djugan and Yawuru people at sovereignty, his Honour made the following findings of fact (Rubibi (No 6) at [31]):

   (a)the early ethnography regarded the Djugan and Yawuru as different tribes (although his Honour observed that that evidence was “problematic as to the consequences that flow from designating a group of Aboriginal persons to be a ‘tribe’”);

   (b)the Djugan and the Yawuru were associated respectively with the northern and southern areas in the Yawuru claim area;

   (c)the Yawuru practised the southern tradition in the claim area and the Djugan practised the northern tradition in the claim area;

   (d)it is more likely than not that the Djugan and the Yawuru practised different traditions and were associated with different areas in the claim area at sovereignty.

3. Those findings of fact provide the basis for the State’s assertion that it was not open to his Honour to find, as a matter of law, that the Djugan were part of the native title holding Yawuru community.

4. His Honour did not consider that the findings set out in [49] above necessarily meant that the Djugan and the Yawuru each possessed their own discrete communal native title rights in respect of the northern and southern parts of the Yawuru claim area. Having regard to the evidence of senior law men and women from “country” adjacent to the Yawuru claim area, of current members of the Yawuru community and of anthropologists, the primary judge found that the traditional laws and customs acknowledged and observed by the Yawuru community regard that community’s “country” as including both the northern and southern areas. His Honour noted that much of that evidence predated the current native title claims.  Furthermore, the evidence was held to establish that many of the traditional laws and customs of the northern and southern traditions were the same, or substantially the same. In this respect his Honour found that the Djugan and Yawuru each had the same four skin sections and similar kinship systems, and referred to the evidence of Dr Palmer, an anthropologist called by the Yawuru claimants, that “in the Yawuru claim area the two traditions concerned the same country, shared mythical characters, shared overlapping stories, involved male initiation [and] shared a belief and respect for the mythical power of law grounds”. The primary judge considered also that the linguistic evidence that the Djugan spoke a dialect of the Yawuru language, in common with two other groups which were unequivocally located within Yawuru country, supported the submission of the Yawuru claimants that the Djugan and Yawuru together formed one native title holding community in relation to the entire Yawuru claim area.

5. On the basis of the evidence referred to in the preceding paragraph, together with the evidence of the Yawuru claimants that the Djugan were regarded as part of the contemporary Yawuru community and that earlier cultural distinctions between the Djugan and the Yawuru were no longer in existence, his Honour rejected the State’s submissions regarding the relationship between the Djugan and the Yawuru at sovereignty. He concluded in Rubibi (No 6) at [78]-[79]) that

   [78]The normative system that determines the existence and possession of native title in the Yawuru claim area, both at sovereignty and at the present time, is the system acknowledged to have been prescribed by the Bugarrigarra in relation to Yawuru country.  As I noted at [367] and [370] of the interim reasons, the southern tradition is part of that system and part of the traditional laws and customs acknowledged and observed by the Yawuru community.  In these reasons, I have considered in greater detail the evidence concerning the role of the northern tradition in Yawuru country.  That tradition, which was practised by the Djugan, was placed in Yawuru country by the Bugarrigarra.  In determining the content of the normative system under which the native title rights and interests in issue are being claimed, the communal belief in the Bugarrigarra, and its role in providing for the southern tradition and the northern tradition in Yawuru country, must be taken into account.  When the common source of both traditions is taken into account, there is no reason why each of the traditions should not be taken as recognising and providing for the practice of the other tradition in the Yawuru claim area by local groups who are part of the community of Yawuru persons designated by the Bugarrigarra to be speakers of the Yawuru language in Yawuru country.

   [79]The evidence to which I have referred establishes that, notwithstanding their cultural differences, there were extensive traditional connections and commonalities between the Djugan and the Yawuru, the common source of which was the Bugarrigarra in so far as it related to ‘Yawuru’ country.

6. In reaching that conclusion, the primary judge relied upon the observations made by the Full Court of this Court in Alyawarr (FC), referred to above, that members of a “community” may possess communal native title rights and interests notwithstanding that they are “intramurally allocated” to different groups or subsets of the community.

   The alleged error of the primary judge regarding communal native title and the status of the Djugan people

7. As we have said, the State’s challenge to his Honour’s findings on the existence of, and possessors of, native title rights and interests in the Yawuru claim area comprises a general criticism regarding the approach taken to the concept of “communal native title” and the identification of the persons who may own it; an error which is then said to manifest itself in an incorrect conclusion on the evidence regarding the Djugan people.

8. In relation to the first aspect of the State’s submission, the State’s initial complaint is that there are no findings as to the relevant “society” at sovereignty; thus, it is said, there is no basis upon which his Honour could, or did, find that any contemporary society was a continuation of any traditional society, using that term in the Yorta Yorta sense. The alleged failure to identify the Yorta Yorta society, and consequent failure to identify the traditional laws and customs of that society at sovereignty is said to be caused by his Honour’s erroneous focus on the Yawuru “community”. The State urged this Court to draw a distinction between a native title holding “society” and “community”, two concepts which are said to have been wrongly treated by the primary judge as synonymous.  In particular, the State contended that by accepting that native title can be held as “communal title”, his Honour “assumed [that it existed] in all parts of the claim area on the basis only of proof that the community continues to exist and has a (present) connection to the area as a whole.”  It said the concept of communal title, approved by Lee J in Ward v Sate of Western Australia (1998) 159 ALR 483 (Ward (first instance)), was rejected by the High Court in Ward (HC) at [84], [92].

9. In its reply submissions the State explained its position thus:

   [T]he error that is pervasive and of which the State complains is commencing the inquiry into native title and who holds it with the conclusion that the native title is communally held. Whether native title can be characterised as communal, group or individual depends on the evidence (and particularly the rules of the society) and is a conclusion to be reached after proper inquiry; its character is not to be assumed in order to answer the question as to who holds it.

10. It asserts that the approach taken by the primary judge in focussing on communal title and inquiring as to a (present) native title holding community having the necessary connection with the claim area at a communal level led him to “by-pass” two necessary inquiries under the NTA: (1) are rights and interests possessed throughout the claim area under the traditional laws and customs of the pre-sovereignty society? and (2) do the claimants have a connection to all areas claimed by the continued acknowledgement and observance of those laws and customs?

11. Finally (in relation to what we have called the first aspect of the State’s submission) the State contends that his Honour failed correctly to determine the existence of native title rights in the Yawuru claim area because it was not logically possible to identify whether the Yawuru community or the Walman Yawuru clan were native title holders (as his Honour did in Rubibi (No 5)) without first determining whether the Djugan were a part of the Yawuru community (Rubibi (No 6)).

12. The State then contends that the primary judge’s incorrect approach to the identification of native title rights and interests in the Yawuru claim area led him to the erroneous conclusion that the Djugan were a subset, or subgroup, of the Yawuru community and therefore that that community holds native title in the northern, as well as the southern, portions of the Yawuru claim area. It is said that, having made the findings he did at [31] of the reasons for judgment in Rubibi (No 6) (reproduced at [49] above), instead of introducing the notion of “communal title” his Honour should have determined that there were two “societies” in the Yawuru claim area at sovereignty, not one. The subsequent findings of the primary judge about the disintegration of the Djugan as an identifiable group are said to preclude a determination of native title being made in relation to the northern area. In the alternative, the State submits that if the Djugan have become a sub-set or subgroup of the Yawuru community, or have been absorbed into the Yawuru community, it is the result of a post-sovereignty change that could not effect a transfer of native title rights from the Djugan to the Yawuru.

13. It is contended that his Honour placed undue reliance on the similarities between the law and customs of the northern and southern traditions, overlooking the requirements of unity in their acknowledgment and observance; and also that he placed undue reliance on the evidence of contemporary witnesses and paid insufficient attention to the findings made at [31] of Rubibi (No 6) regarding the differences between the Djugan and the Yawuru.

14. The particular focus of this part of the State’s submission is his Honour’s observation, at [61] of his reasons in Rubibi (No 5), that “[u]ltimately, [the Yawuru claimants] accepted that the normative system upon which they relied was the southern tradition”. His Honour’s subsequent finding in Rubibi (No 6) (at [78]) that the normative system applicable in the Yawuru claim area “is the system acknowledged to have been prescribed by the Bugarrigarra in relation to Yawuru country”, of which the southern tradition forms part, is said to be inconsistent with the earlier characterisation of the normative system as being constituted only by the southern tradition. The State contends that the Bugarrigarra prescribed two normative systems in the Yawuru claim area at sovereignty.

15. In addition, the State claims that his Honour prematurely decided that the Yawuru community held native title rights and interests in the whole of the Yawuru claim area (including the northern area) in Rubibi (No 5); thus his consideration of the issue in Rubibi (No 6) was unduly influenced by that finding, and also by the findings made by his Honour in respect of the law ground at Kunin in Rubibi (No 1).

16. Several other discrete aspects of his Honour’s reasoning on this issue were criticised by the State; it said that the findings that the Djugan were a subset or subgroup of the Yawuru community, were absorbed into the Yawuru community, or alternatively passed on their native title by a process of succession, were inconsistent; and it complained that his Honour failed to have regard to certain evidence regarding the views of the Djugan Association, the members of which were said to “stress emphatically that they are descendants from Djugan ancestors and that they were and remain separate from the Yawuru.”

17. We should make clear that the State’s ultimate submission in relation to this issue is that native title should be held not to exist in the northern portion of the Yawuru claim area. Subject to its contentions regarding the descent system of the Yawuru community, which are considered below, the State accepts that the Yawuru claimants hold native title in the southern area.

18. The Commonwealth supported the State’s appeal. It sought to emphasise in its submissions that a Yorta Yorta society exists only where since sovereignty, the members of the putative society have shared the same (not merely similar) laws and customs; and the members of the putative society themselves have regarded its laws and customs as “mutually and commonly binding”.  Both of these “essential criteria” were said to be absent on his Honour’s findings of fact.

    Did his Honour find or assume that native title existed?

19. The State, supported by the Commonwealth and WAFIC, contended that in Rubibi (No 5) the trial judge assumed, rather than determined by reference to the appropriate test and the evidence adduced by the parties, that native title exists in relation to the Yawuru claim area.  The Yawuru claimants contended, perhaps faintly, that his Honour did not determine in Rubibi No 5 whether or not native title exists in relation to the Yawuru claim area.  This contention is directly contradicted by, amongst other things, the opening paragraph of Rubibi No 6, which is in the following terms:

    In interim reasons for judgment (Rubibi Community v State of Western Australia (No 5) [2005] FCA 1025) (‘the interim reasons’) I determined that:

    (a)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 in the present case are being claimed ([366]-[369]);

    (b)under the traditional laws and customs acknowledged and observed by the Yawuru community, native title rights and interests in relation to the claim area are possessed by the Yawuru community which, by those laws and customs, has a connection with land and waters that are situated within that area ([370]-[376]); and

    (c)the rights and interests possessed by the Yawuru community are communal native title rights and interests ([376]).

20. The starting point for the State’s contention that his Honour assumed the existence of native title in the Yawuru claim area is the passage from Rubibi (No 5) set out in [10] above.  In particular the State relies on the words “… 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”.

21. It would be inappropriate to treat what were plainly introductory observations of his Honour as determinative of any question of substance.  The State did not suggest otherwise.  It is necessary to analyse the totality of his Honour’s reasons for judgment in Rubibi (No 5) for the purpose of identifying the issues which his Honour identified as requiring determination, the evidence to which his Honour gave consideration and the findings made by him based on that evidence.

22. At [7] the primary judge observed that the Walman Yawuru claimants had been removed as applicants and joined as respondents:

    … 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. (emphasis added)

    The word that we have emphasised in the above observation suggests that his Honour did not assume the existence of native title in the Yawuru claim area.

23. Between [14]-[24] his Honour reviewed relevant provisions of the NTA and Full Court and High Court authorities touching on their proper construction.  Importantly for present purposes his Honour at [19] quoted a long passage from De Rose (No 1) which included references to the High Court majority judgment in Yorta Yorta.  The following is an extract from that long passage:

    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 by the primary judge]

    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…

24. At [25] his Honour noted:

    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.

25. It seems to us that the concluding sentence of the above extract from [25] clarifies any ambiguity in the first sentence.  It makes clear that the critical question posed by his Honour is not whether assumed native title rights and interests are possessed by the claimant community on the one hand or the claimant group on the other.  The question posed is whether, applying the principles earlier identified by his Honour, including the requirement that native title rights and interests are possessed under a normative system that has had a continuous existence and vitality since sovereignty, under the traditional laws and customs of the Yawuru community the community as a whole, or alternatively clans within the community, possess the native title rights and interests in the claim area.  That this is the correct understanding of his Honour’s words is confirmed by the final sentence of the above extract.

26. Moreover, at [30] his Honour identified as one of the questions that he was required to consider:

    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?

    The language used by his Honour on formulating this question suggests that his Honour had the majority judgment in Yorta Yorta at the forefront of his mind.

27. At [45] the primary judge noted that the continuing acknowledgement and observance of traditional law and custom by the Yawuru community was contested in the proceeding before him. His Honour in the following paragraphs gave consideration to the evidence of indicia of continuity of Yawuru traditional law and custom (see partic. [45]-[181]). One aspect of the evidence considered by his Honour was evidence of genealogies. His conclusion concerning this evidence appears at [181] in the following terms:

    I am satisfied that, notwithstanding certain deficiencies, the genealogies establish that on an ambilineal or cognatic basis, the Yawuru claimants, are likely to be descendants of members of the Yawuru community or people at the time of colonial contact, and therefore at the time of sovereignty.  Accordingly, subject to the issue of ambilineal or cognatic descent being in accordance with traditional law and custom, I am satisfied that the present Yawuru community is not a new community nor is it a community whose members are not descended from the members of the Yawuru community at sovereignty.

1. The Yawuru claimants argued that three of the fourteen areas did not appear to be walkways or drains and that, although there was evidence that the claim group walked across them, this did not reflect all of the evidence of occupation.  They contended that these three areas are part of the Kennedy Hill area, which is used by them because it is of particular significance.

2. For instance, Frank Sebastian said that the area is culturally important for the Yawuru claimants, they come to the area often, they have done so historically and some have lived near by.  He said:

   The area that Malingbar Reserve is on is part of Kennedy Hill.  We took the court to hear evidence there because this whole area is very important for Yawuru people.  Many Aboriginal people used to live at Kennedy Hill, and Yawuru people have been coming here for as long as I can remember.  There are still middens there from when people used to camp there.  There are also important Bugarrigarra places there.

3. Neil McKenzie described activity on the land by the Yawuru claimants arising from the cultural significance of the area:

   Right up near Dampier Terrace there are three blocks of UCL…  I don’t know exactly where these boundaries are, but this area is where lots of people camp and I go here often to see people.  I also go to Mallingbar reserve to visit people and when I run my tours, I take people to Kennedy Hill … which is a very important area for Yawuru people.  We take care of this place as there are important song cycles that run through this country.  Yawuru people walk through here and come here whenever they please.

4. Further, Patrick Dodson said:

   My grandmother used to live at Kennedy Hill.  That area where the water tanks used to be next to Kennedy Hill is very significant for us.  There are large shell middens there on both sides of the road.  There are stories in and around that place for the northern and southern law traditions, plus the Wanji travels through that area.

   There are bush areas on both sides of Port Drive, all the way down to the port.  People still get tucker from these areas and walk through them to get to the ocean for fishing.  They might camp there.  My sister used to live near the port.  Many people fish at Simpson’s Beach and all the way along to the old meatworks.  People often fish here overnight, especially when the salmon are running.  They may nap in the dunes behind and you can see the first they light.  Old people camped in those places.  My uncle, David Djiagween, used to walk along Cable Beach to the Willie Creek area.  I know this, because sometimes he would give me turtle eggs that he found there.

5. Finally, Elsta Foy opposed construction of a building on one of the areas, which did not proceed for cultural and heritage grounds.  Elsta Foy said:

   In the late 1980s or early 1990s the government wanted to reallocate one of the UCLs in order to permit a building to be constructed there.  I was one of the Walman people who opposed it.  For cultural and heritage reasons, it did not go ahead.

6. The State agreed that the evidence showed that the areas are considered important, that people drive and walk through them, that people camp in them and that development of them was opposed but the State contended that this evidence was relevant to the issue of connection but did not establish occupation.  The State argued that the primary judge took all the relevant facts into account and determined the issue in accordance with the relevant principles.

7. 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

8. 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

9. 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.

I certify that the preceding three hundred and seven (307) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson, North and Mansfield.

Associate:

Dated:       2 May 2008

Counsel for the Appellant/First Cross-Respondent:	Ms R Webb QC with Ms S Begg
Solicitor for the Appellant/First Cross-Respondent:	State Solicitors Office
Counsel for the First Respondent/First Cross-Appellant:	Mr R Blowes SC with Mr A Frith
Solicitor for the First Respondent/First Cross-Appellant:	Kimberley Land Council
Counsel for the Second Respondent/ Second Cross-Appellant:	Mr I Viner QC
Representative for the Second Respondent/ Second Cross-Appellant by leave:	Ms R Hanigan
Counsel for the Third Respondent:	Mr P Quinlan
Solicitor for the Third Respondent:	Australian Government Solicitor
Legal Representative for the Sixth Respondent:	Mr M McKenna
Solicitor for the Sixth Respondent:	Hunt & Humphry
Counsel for the Second Cross-Respondent:	Mr P Wittkuhn
Solicitor for the Second Cross-Respondent:	McLeods
Date of Hearing:	6, 7 and 8 March 2007
Date of Judgment:	2 May 2008

ANNEXURE A

ANNEXURE B

RUBIBI NATIVE TITLE DETERMINATION No.2

JUDGE MAKING ORDER:          MERKEL J

WHERE MADE:   BROOME

DATE OF ORDER:  28 APRIL 2006

THE COURT DETERMINES THAT:

Existence of native title (s.225)

1.Native title exists in relation to the land and waters described in Schedules 4, 5 and 6.

2.Native title does not exist in relation to the land and waters described in Schedule 3.

The Native Title Holders (s.225(a))

3.The native title is held by the "Yawuru Community", being the persons described in Schedule 1 (native title holders).

Native title rights and interests (s.225(b) and (e))

4.Subject to Orders 8 to 9 the nature and extent of the native title rights and interests in the land and waters described in Schedule 4 [being areas where there has been no extinguishment of native title or areas where any extinguishment must be disregarded] is:

(a)except in relation to flowing and subterranean water - the right of possession and occupation as against the whole world; and

(b)the right to take flowing and subterranean water for personal, domestic or non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes).

5.Subject to Orders 7 to 9 the nature and extent of the native title rights and interests in the land and waters described in Schedule 5 [being areas where there has been partial extinguishment of native title (for example by the creation of reserves and by the grant of pastoral and mining leases), where any extinguishment is not required to be disregarded and that are not intertidal areas] are:

(a)the right to live on the land;

(b)the right to access, move about in and on and use the land and waters;

(c)the right to hunt and gather on the land and waters for personal, domestic or non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes);

(d)the right to engage in spiritual and cultural activities on the land and waters;

(e)the right to access, use and take any of the resources of the land and waters (including ochre) for personal, domestic or non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes); and

(f)the right to care for and maintain and protect the land and waters, including places of spiritual or cultural significance.

6.Subject to Orders 7 to 9 the nature and extent of the native title rights and interests in the land and waters described in Schedule 6 [being intertidal areas] are:

(a)the right to access, move about in and on and use the land and waters;

(b)the right to hunt and gather in and on the land and waters, including for dugong and turtle for personal, domestic or non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes);

(c)the right to access, use and take any of the resources of the land and waters (including the fresh water) for personal, domestic or non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes); and

(d)the right to maintain and protect the land and waters, including its places of spiritual significance.

7.The native title rights and interests in Orders 5 and 6 do not confer possession, occupation, use and enjoyment on the native title holders to the exclusion of all others.

8.The native title rights and interests are:

(a)exercisable in accordance with the traditional laws and customs of the native title holders; and

(b)subject to and exercisable in accordance with the laws of the State and the Commonwealth including the common law.

9.There are no native title rights and interests in or in relation to:

(a)such minerals as defined in the Mining Act 1904 (WA), or in the Mining Act 1978 (WA) as in force at the date of this Determination as are the property of the Crown;

(b)petroleum as defined in the Petroleum Act 1936 (WA), or in the Petroleum Act 1967 (WA), as in force at the date of this Determination.

Nature and extent of any other interests (s.225(c))

10.The nature and extent of other interests in relation to the Determination Area are those set out in Schedule 7 (“other interests”).

Relationship between native title and other interests (s.225(d))

11.The relationship between the native title rights and interests described in Orders 4 to 6 and the other interests referred to in Order 10 is that the other rights and interests co-exist with the native title rights and interests, and:

(a)to the extent that any of the other rights and interests is inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the other rights and interests to the extent of the inconsistency during the currency of the other rights and interests; and otherwise,

(b)the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the other rights and interests, and the other rights and interests, and the doing of any activity required or permitted to be done by or under the other rights and interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but do not extinguish them.

Definitions and interpretation

12.In this determination, unless the contrary intention appears:

“Determination Area” means the land and waters referred to in Orders 1 and 2, being the land and waters of the areas described in Schedules 3 to 6, and also being certain lands and waters within the location described in Schedule 2;

“flowing and subterranean water” means the following water within the Determination Area:

(a)water which flows, whether permanently, intermittently or occasionally, within any river, creek, stream or brook;

(b)any natural collection of water into, through, or out of which a river, creek, stream or brook flows; and

(c)water from and including an underground water source, including water that percolates from the ground;

“improvement” means any house, shed, other building, airstrip, constructed dam or constructed stock watering point;

“land” has the same meaning as in the Native Title Act except in Order 5(a);

“Native Title Act” means the Native Title Act 1993 (Cth);

“waters” has the same meaning as in the Native Title Act.

13.In the event of an inconsistency between the written description of an area in Schedules 2 to 7 and the area as depicted on the Maps in Schedule 8, the written description prevails.

SCHEDULE 1 – THE NATIVE TITLE HOLDERS

The native title holders, the persons referred to in Order 3, are:

(a)the 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 and Philomena "Polly" Vincent (nee Pedro) save that where a person has only one Yawuru parent, that person self-identifies as Yawuru; and

(b)Aboriginal persons who have been adopted as children or been grown up by a Yawuru person as members of the Yawuru community under the traditional laws and customs of the community and who self-identify and are generally accepted by other members of the community, as Yawuru persons; and

(c)Aboriginal persons who possess high cultural knowledge and responsibilities in relation to the area described in Schedule 2 and:

(i)were born in; or

(ii)have a long term physical association with,

that area under the traditional laws and customs of the Yawuru community and who self identify and are generally accepted by other members of the community, as Yawuru persons; and

(d)the descendants of persons referred to in (b) or (c) save that where a person has only one Yawuru parent, that person self-identifies as Yawuru.

SCHEDULE 2 – LOCATION OF DETERMINATION AREA

The Determination Area is wholly within the following location:

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 along the northern boundary of the area subject to the determination of native title in Nangkiriny v State of Western Australia [2004] FCA 1156 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.

SCHEDULE 3 – AREAS WHERE NATIVE TITLE DOES NOT EXIST

Areas referred to in Order 2

The areas referred to in Order 2, where native title does not exist, are:

The areas described and listed as being in Schedule 3 in the Determination Area Table, and generally shown on the Maps in Schedule 8.

Any part of an area (other than an area identified in the Determination Area Table as an area to which s47A or s47B of the Native Title Act applies to require prior extinguishment to be disregarded) upon which an improvement has been constructed pursuant to a right granted under a pastoral lease or a mining lease prior to the date of this determination and including any adjacent land or waters the exclusive use of which is necessary for the enjoyment of the improvement.

SCHEDULE 4 – EXCLUSIVE NATIVE TITLE AREAS

Areas where native title comprises the exclusive rights set out in Order 4.

The areas in which native title comprises the rights and interests set out in Order 4 are the areas described and listed as being in Schedule 4 in the Determination Area Table, and generally shown on the Maps in Schedule 8.

SCHEDULE 5 – NON-EXCLUSIVE NATIVE TITLE AREAS

Areas where native title comprises the rights set out in Order 5

The areas in which native title comprises the rights and interests set out in Order 5 are the areas described and listed as being in Schedule 5 in the Determination Areas Table, and generally shown on the Maps in Schedule 8.

SCHEDULE 6 – TIDAL NATIVE TITLE AREAS

Areas where native title comprises the rights set out in Order 6

The areas in which native title comprises the rights and interests set out in Order 6 are the areas described and listed as being in Schedule 6 in the Determination Area Table, and generally shown on the Maps in Schedule 8.

SCHEDULE 7 - OTHER INTERESTS

The interests referred to in Order 12

The nature and extent of other interests in relation to the Areas are the following as they exist as at the date of this determination:

1.The rights and interests of the holders of the following pastoral leases:

(a)Thangoo Pastoral Lease 3114/0635;

(b)Roebuck Plains Station Pastoral Lease 3114/0499.

2.The interests of persons who have the care, control and management of the following reserves, and the interests of persons entitled to access and use these reserves for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights:

(a)Reserve 631 for the purpose of public purposes, adjoining Broome, Roebuck Bay;

(b)Reserve 1514 for the purpose of watering place (Thangoolugunjal Well);

(c)Reserve 1515 for the purpose of watering place (Thangoo Well);

(d)Reserve 1516 for the purpose of watering place (Balyarrangunjal (or Goldwire) Well);

(e)Reserve 1517 for the purpose of watering place (Yardogarra Well);

(f)Reserve 1518 for the purpose of watering place (rock hole between Leura and Yardogarra);

(g)Reserve 1643 for the purpose of Cemetery (Pioneer Cemetery at Town Beach);

(h)Reserve 2551 for the purpose of Gaol (area at Hamersley Street, near Stewart Street);

(i)Reserve 9697 for the purpose of Kimberley-De Gray Stock Route;

(j)Reserve 11122 for the purpose of Aborigines (area at Djaigween Road);

(k)Reserve 15019 for the purpose of police (area at Frederick and Hemmersley Street);

(l)Reserve 21801 for the purpose of hospital for natives (area at Anne Street);

(m)Reserve 25790 for the purpose of natives (area at Carnarvon and Frederick Streets (Kennedy Hill));

(n)Reserve 31340 for the purpose of recreation bathing and caravan park (area at Town Beach);

(o)Reserve 34937 for the purpose of Use and Benefit of Aboriginal inhabitants (area at Dora Street and Paddy Court (Mamabulanjin));

(p)Reserve 35743 for the purpose of public utilities services (area near Port);

(q)Reserve 40108 for the purpose of Use and Benefit of Aboriginal Inhabitants (area at Lawrence Road);

(r)Reserve 41255 for the purpose of Recreation and Drainage (area at Gubinge Road);

(s)Reserve 41256 for the purpose of Recreation and Drainage (area at Cable Beach Road East);

(t)Reserve 43080 for the purpose of coastal park (recreation, conservation and protection of Aboriginal heritage) (area known as Minyirr Park, at Cable Beach); and

(u)Reserve 45619 for the purpose of use and benefit of Aboriginal inhabitants (area north of Chinatown).

3.The interests of holders of tenements under the Mining Act 1978 (WA) including any entitlement to use (including by servants, agents and contractors) such portions of existing roads and tracks in the Determination Area as necessary in order to have access to the mining tenement for the purposes of exercising the rights granted by that tenement provided that such use does not include the upgrade, extension, widening or other improvement of a road or track or any work on a road or track other than work done to maintain it in reasonable repair and in order to leave it in substantially the same condition as it was prior to such use.

4.The interests of the holders of statutory fishing interests granted under the Fish Resources Management Act 1994 (WA), the Pearling Act 1990 (WA), and the Fisheries Management Act 1991 (Cth) and any regulations made pursuant to such legislation.

5.The interests of holders of any other valid or validated rights and interests granted by the Crown pursuant to statute or otherwise in the exercise of its executive power.

6.Rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth, including any right or interest created by or in relation to the proclamation of the Broome Groundwater Area on 1 November 1974 and the Canning-Kimberley Groundwater Area on 22 April 1997 pursuant to section 26B(1) of the Rights in Water and Irrigation Act 1914 (WA); and the constitution of the Broome Water Reserve pursuant to section 9 of the Country Water Supply Act 1947 (WA).

7.The rights of members of the public under the following:

(a)the public right to fish in tidal waters; and

(b)the public right to navigate in tidal waters.

8.The rights under the international right of innocent passage.

9.The right to access areas of previously unallocated Crown land by any:

(a)employee or agent of the State Government;

(b)employee or agent of the Commonwealth Government;

(c)employee or agent of any local government authority,

as required in the performance of his or her statutory or common law duties where such access would be permitted to private land.

10.So far as confirmed pursuant to section 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at the date of this determination, any existing public access to and enjoyment of:

(a)waterways; or

(b)beds and banks or foreshores of waterways; or

(c)coastal waters; or

(d)beaches; or

(e)stock routes.

11.The rights and interests of Telstra Corporation Limited:

(a)as the owner or operator of telecommunications facilities within the Determination Area, including customer radio terminals and overhead and underground cabling;

(b)as the holder of a carrier licence under the Telecommunications Act 1997 (Cth);

(c)created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth); and

(d)for its employees, agents or contractors to enter the Determination Area to access its facilities in and in the vicinity of the Determination Area in the performance of their duties.

12.Any other:

(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)restriction on the use of the land or waters, whether or not annexed to other land or waters.