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Court and Tribunal Decisions - Australia
Federal Court of Australia (Merkel J)
29 May 2001
Native title — communal native title — Native Title Act 1993 (Cth) — claim to exclusive possession, occupation, use and enjoyment of an Aboriginal law ground for ceremonial purposes — whether the claimant community has substantially maintained its traditional connection with the law ground in accordance with traditional laws and customs — capacity of traditional law and customs to evolve, adapt and change — whether entitlement to exclusive native title rights and interests has been extinguished — whether s 47A of the Act requires that any extinguishment be disregarded
This case concerned two competing applications for a determination of native title in respect of Reserve 30906, an area of approximately 300 acres situated near the township of Broome in Western Australia (‘the claim area’). The claim area was previously part of Crown Reserve 631, set aside for public purposes in 1883. In 1971 Reserve 30906 was excised from Reserve 631 and vested in the Minister for Native Welfare for the purpose of a ‘Ceremonial Site’. In 1973 Reserve 30906 was vested by statute in the Aboriginal Lands Trust for the ‘Use and Benefit of Aborigines’.
The first applicants (‘the Rubibi applicants’) contended that the claim area is a traditional ceremonial law ground of the Yawuru people which, notwithstanding recent gaps in the performance of ceremonies, is and had been used since before the acquisition of sovereignty in 1829 to conduct sacred ceremonies by members of an identifiable community, in accordance with that community’s traditional laws and customs. The Rubibi applicants also contended that the creation of Reserve 631 for public purposes in 1883 had effected no extinguishment of their native title right to occupy, use, possess and enjoy the claim area to the exclusion of all others, for ceremonial purposes or, if it had, s 47A of the Native Title Act required such extinguishment to be disregarded.
The second applicants (‘the Leregon applicants’) also claimed native title rights and interests in respect of the claim area. They contended that, save for any specific ceremonial sites established to be within the claim area, the area should otherwise be for the general use and benefit of Aboriginal persons. It was common ground between the claimant groups that the Leregon applicants, as members of the Yawuru people, were entitled to the benefit of the native title determination sought by the Rubibi claimant group.
The State of Western Australia contended that the claimant groups had failed to discharge the onus of proving that they constitute an identifiable community that has maintained a connection with the claim area by the acknowledgement and observance of the community’s traditional laws and customs. The State also contended that the reservation of the claim area as a public reserve in 1883 had extinguished any native title right to exclusive possession of that area.
1. Native title exists in relation to Reserve 30906 and is held by the Rubibi claimant group. The Rubibi claim group are members of the Yawuru community, an identifiable traditional community that has continued to maintain a traditional connection with the claim area since 1829. [193], [101], 161]
2. The native title confers upon the claimant group the right of occupation, use, possession and enjoyment of the area, as against the whole world, ‘for ceremonial purposes’. [193]
3. ‘In determining the existence of native title and in defining its content, a flexible and broad approach should be taken to ensure that the native title recognised truly reflects the claimant group’s traditional connection to its land. It would be erroneous to endeavour to give content to that connection, and the rights and interests that flow from it, simply by reference to some supposed or analogous common law counterpart to those rights and interests’: Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258 referred to. [32]
4. Oral histories by Aboriginal witnesses are ‘logically probative’ and should not be undervalued by way of comparison to the ‘assumed objectivity’ of written records: Commonwealth of Australia v Yarmirr [1999] FCA 1668; (2000) 101 FCR 171 cited; Delgamuukw v British Columbia (1993) 104 DLR (4th) 470, Mason v Tritton (1994) 34 NSWLR 572, Members of the Yorta Yorta Aboriginal Community v State of Victoria [2001] FCA 45 referred to. [53], [54]
5. Gaps in the use of the claim area for traditional ceremonial purposes do not preclude a finding that the continuing traditional use of the claim area has been substantially maintained; they ‘afford a good example of the danger of a Court accepting a ‘historical snapshot’ of the cessation of traditional practice or of the observance of traditional law and custom’: Members of the Yorta Yorta Aboriginal Community v State of Victoria [2001] FCA 45 referred to. [83], [85]
6. Adaptation in the mode of recruitment into a community, from a patrilineal descent model to an ambilineal descent model, does not preclude a finding that the current community constitutes an identifiable traditional community that has continued, as such, to maintain its traditional connection to the claim area. Such adaptation was in accordance with the community’s evolving but traditional laws and customs: Members of the Yorta Yorta Aboriginal Community v State of Victoria [2001] FCA 45 referred to. [136], [138], [142], [161]
7. A broad view should be taken of the meaning of ‘occupation’ for the purposes of applying s 47A of the Native Title Act: Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 followed. [172]
28. The sole basis for the native title claim of the Rubibi applicants is that the claim area is a sacred Aboriginal law ground. In Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, Gleeson CJ, Gaudron, Kirby and Hayne JJ at [37]-[38], after citing the observation of Brennan J in Meneling Station that the traditional connection was ‘primarily a spiritual affair rather than a bundle of rights’, stated:
Native title rights and interests must be understood as what has been called ‘a perception of socially constituted fact’ as well as ‘comprising various assortments of artificially defined jural right’. And an important aspect of the socially constituted fact of native title rights and interests that is recognised by the common law is the spiritual, cultural and social connection with the land.
29. Gummow J stated at [72]:
Native title is not treated by the common law as a unitary concept. The heterogeneous laws and customs of Australia’s indigenous peoples, the Aboriginals and Torres Strait Islanders, provide its content. It is the relationship between a community of indigenous people and the land, defined by reference to that community’s traditional laws and customs, which is the bridgehead to the common law.
30. The above passages emphasise that the native title rights and interests recognised and protected by the common law and the NTA are to find their expression and content from the spiritual, cultural and social connection to the land from which they are derived.
31. The joint judgment in Yanner v Eaton cited two articles (K Gray and S Gray, ‘The idea of property in land’ in S Bright and J Dewar (eds) Land Law, Themes and Perspectives (1998) (‘Land Law’) and K Gray, ‘Property in thin air’ [1991] Cambridge Law Journal 252 at 299) which inter alia, make the point that while one common law conception of property law is as ‘a perception of socially constituted fact’ another competing assessment of property law is ‘as composite bundles of incorporeal right’ (Land Law at 27). It is suggested that ‘[f]ar from being a monolithic notion of standard content and invariable intensity, ‘property’... turns out to have an almost infinitely gradeable quality’ (Land Law at 16). In ‘Property in thin air’ Gray observes (at 299) that ‘[m]uch of our false thinking about property stems from the residual perception that ‘property’ is itself a thing or resource rather than a legally endorsed concentration of power over things and resources.’
32. The passages cited above suggest that, in determining the existence of native title and in defining its content, a flexible and broad approach should be taken to ensure that the native title recognised truly reflects the claimant group’s traditional connection to its land. It would be erroneous to endeavour to give content to that connection, and the rights and interests that flow from it, simply by reference to some supposed or analogous common law counterpart to those rights and interests.
33. The parties were in dispute on two inter-related, but fundamental, issues of fact. The first was whether the Rubibi applicants have established that the claim area was used as a traditional Aboriginal law ground at and since 1829. The second was whether that use was by an identifiable community from which the Rubibi claimant group is descended.
34. Although the Aboriginal witnesses called by the Rubibi applicants were cross-examined, ultimately the dispute related to the inferences to be drawn from the primary facts stated by them, which were largely not in dispute. Similarly, there was little dispute as to the primary facts relied upon by the expert witnesses. Rather, the dispute related to the inferences to be drawn from those facts and the conclusions to be derived from those inferences.
35. The claim area and its surrounds (‘the broader Kunin area’), which are on the eastern bank of Dampier Creek, are known by the non-Aboriginal community as Fishermen’s Bend. The broader Kunin area is known by the Aboriginal community as Kunin, which is the name of a soak near Dampier Creek on the Broome side of the broader Fishermen’s Bend area. Kunin is also used by Yawuru people to refer, in the narrower sense, to the law ground within Reserve 30906 and to the immediately adjoining areas of ceremonial significance. The references to Kunin in these reasons for judgment will be to the law ground within Reserve 30906. Save for the Leregon structures, a shed for the storing of ceremonial objects and some unmade tracks, Kunin is otherwise undeveloped bush.
36. The Rubibi applicants and the State adduced evidence from two historians, Dr Fiona Skyring and Mr Chris Stronach respectively.
37. Dr Skyring explained that the historical evidence should be understood to have arisen in a context where, until recently, the records resulting from contact between Aboriginal and non-Aboriginal people in the area around Broome were created entirely by non-Aboriginal observers, participants and chroniclers. She stated that the presence of Aboriginal people and their activities at any particular location around Broome was recorded by those observers in a manner appropriate to the particular objective or context of the person or agency creating the record. Further, according to the evidence, the detail of the ‘men’s business’ conducted at Kunin was highly secret and was only to be disclosed to Aboriginal men who had been ‘put through law’. In the circumstances outlined by Dr Skyring it is not surprising that the written historical records contain only scant reference to ceremonial activities and rituals in or around the claim area.
38. The two historians were not in dispute about the few historical records which did exist although, in some instances, they gave differing interpretations of their significance. It was common ground that:
39. The main area of dispute related to whether the evidence was sufficiently specific to establish that the claim area was used as an Aboriginal law ground prior to 1947, when sacred objects were transferred from the Yawuru law ground at Thangoo to Kunin.
40. A number of historical records are relied upon by the Rubibi applicants to establish the use of Kunin as a law ground prior to 1947.
41. First were some notes by Ada Peggs, one of the first European settlers in Broome, written in 1898-1901. She related how the local Aboriginal people invited her and her husband to attend ‘Kobba Kobba’ or corroboree (different names for traditional ceremonies) a long way into the bush, but a place still close enough to the mangroves for the sandflies to be a problem. Peggs recalled how they watched women, children and men dancing and singing, and described the men as being ‘in full war paint’. After a part of the performance, Peggs records she was told ‘White womanee go away now, he no good’. The Rubibi applicants contended that the description of the ceremony given by Peggs, as being divided into two parts, one which was open and the other restricted, accords with the description of ceremonies performed at Kunin.
42. Second, in 1917 local authorities suggested that the areas in and around Broome, from which Aborigines were prohibited from entering unless in employment, be extended to include Fishermen’s Bend. The Police Inspector’s response to the suggestion revealed that the area was a popular camping place for Aboriginal people and a place to which Aboriginal people travelled for ceremonies.
43. Third, a subsequent report in 1928 from the local Inspector of Aborigines to the Chief Protector referred to ‘Cobba Cobbas’ as one of the few ‘immemorial’ pleasures left to the Aboriginal people around Broome.
44. Fourth, in a report of a Broome Court proceeding in 1928, evidence was given by Aboriginal women charged with prostitution to the effect that they avoided going near the ‘Cobba Cobba ground’ near Fishermen’s Bend. The implication was said to be that the ‘Cobba Cobba ground’ was Kunin and that the women kept away from it as they were aware that they were not to go there as it was a place for men’s ceremony.
45. Fifth, other records disclose that in 1953 approximately 20 Aboriginal persons from areas a considerable distance from Broome were seeking to obtain a truck to take them to Broome for ‘Cobba-cobba’.
46. While the above reports are scant, and only a few are specific about the location of a ‘cobba-cobba’ ground, they lend some support to the Rubibi applicants’ contention that Fishermen’s Bend had been used as a traditional ceremonial ground since the early 1900s. Mr Stronach, the State’s historian, agreed that ‘[the] records show that there has been ceremonial activity in the general Fisherman’s Bend area on an intermittent basis from at least 1917’.
47. Significantly, evidence has not been led of any sites other than Kunin in the Fishermen’s Bend area where the ceremonial activities referred to are likely to have taken place. The inference, therefore, is that the ceremonial activity that did take place is most likely to have taken place at Kunin.
48. The Rubibi applicants and the State also adduced expert anthropological evidence from Dr Patrick Sullivan and Dr Erich Kolig respectively. Both experts surveyed the existing ethnographic literature in relation to the Broome area and concluded that the broader Kunin area, variously referred to as Kanin, Kunin, Kanan, Karnin and Ganen, had been used for residential, as well as traditional religious (including initiation), purposes for some time and contained sites considered by the local Aboriginal community to be sacred and of significance to their traditional laws and customs.
49. Dr Sullivan drew on the earliest recorded ethnographic notes made in respect of the Broome area, being the notes of Daisy Bates, who was in the area from the 1890s, as well as certain writings of Peggs, referred to above. Dr Sullivan claimed that references by those persons to places where traditional ceremonies were carried out by Aboriginal people near Broome were likely to be references to ceremonies carried out at Kunin. In particular, Dr Sullivan claimed that in her writings in 1907 Daisy Bates referred to Kunin and used a word which remains in current use by senior Yawuru law men to refer to the seclusion of initiates at a certain stage of the initiation ceremony during which young men are circumcised and ‘put through law’. Dr Sullivan said that these records supported his contention that Kunin was a traditional Aboriginal law ground at that time.
50. Dr Kolig observed that the Aboriginal name Kunin, and the various pronunciations and spellings of that name, was used by Aboriginal people to refer to the wider geographic area used for camping and resource gathering at Fishermen’s Bend as well as to the smaller ceremonial ground within Reserve 30906. He contended that it was unclear which specific location was being referred to in the references relied upon by Dr Sullivan.
51. Dr Kolig also referred to material that demonstrated that, particularly after the Second World War, after Aboriginal people were forced to leave a number of stations, such as Thangoo, at which they had resided for some time they tended to camp at or around Broome, including Fishermen’s Bend. Dr Kolig argued that it is quite possible that Kunin was only established as a ceremonial site after sacred objects had been moved there from the Thangoo law ground in 1947. He relied on a comprehensively researched thesis of K Hosokawa written in 1991. The thesis, which was on the Yawuru language of the West Kimberley, suggested that the male initiation ceremonial site at Thangoo ‘shifted several times’ until it was finally located in the Fishermen’s Bend area. Dr Kolig said that it was only clear from the anthropological evidence that Kunin was a significant Aboriginal ceremonial and initiation site at some time after the shifting of the sacred objects, probably in the 1950s, and that there was little to suggest that Kunin had been used as a ceremonial ground prior to 1947.
52. While there is some substance in Dr Kolig’s criticisms of the conclusions drawn by Dr Sullivan, ultimately the material must be weighed in the context of the totality of the historical and ethnographic records, as well as the oral history provided by the local community.
53. The final category of evidence that is logically probative of the role of the law ground in accordance with Aboriginal law and tradition is the oral testimony of witnesses called by the Rubibi applicants. Before turning to that evidence it is appropriate to re-iterate certain observations I made in the Croker Island case at [86] to [87]:
Traditionally, Anglo-Australian culture has placed greater value on written material than on oral accounts. Oral accounts are often considered to be subjective in comparison to written records’ assumed objectivity and the spoken word is understood as being susceptible to modification over time as it is retold from one person to another: see Gray J, ‘Saying It Like It Is: Oral Traditions, Legal Systems and Records’, Archives and Manuscripts 26:2 (1998) 248. In comparison, the written word tends to become immutable once recorded, less vulnerable to change and strengthened each time it is relied upon as authority.
Thus, in Delgammukw the trial judge treated oral history as only confirmatory evidence. That led Lamer CJC to observe (at 236), in the Canadian context, that such an approach would have the consequence that:
...the oral histories of Aboriginal peoples would be consistently and systematically undervalued by the Canadian legal system.
As Lamer CJC said (at 231) courts hearing indigenous peoples right litigation have had to ‘come to terms with the oral histories of Aboriginal societies’. See also Mason v Tritton at 588-9 per Kirby J.
54. See also the Yorta Yorta case at [56]-[57] per Black CJ.
55. A consistent theme in the evidence of the senior male and female Yawuru witnesses, and of the senior law men of other communities sharing the same law was that their elders had informed them that Kunin was a sacred place and that that accorded with their own experience. A number of witnesses had been ‘put through the law’ at Kunin.
...
57. The history of Reserve 30906 also supports the Rubibi applicant’s case on use. The genesis of the Reserve appears to have been an offer by the Western Australian Museum to donate secure storage sheds for ritual objects to Aboriginal groups in the Kimberley region. As a result of the offer, on 12 December 1967 the Superintendent of the Northern Division of the Department of Native Welfare wrote to the Commissioner of Native Welfare indicating that the District Officer in Broome had been requested to confer with ‘Broome tribal elders’ to assist in choosing a location for the storage sheds.
58. On 9 January 1968 the District Officer in Broome reported back to the Superintendent:
The Broome elders are most keen to have a repository erected on the Broome [restricted word] site. This has posed a slight problem as this is ‘Shire Common Land’. The Shire president has been spoken to regarding this and he has verbally indicated that every assistance can be expected from the Shire. It is felt that the area concerned should be excised as a reserve to prevent public access. Can you advise if this is possible and how long the action would take. The area is quite close to Broome in the Fishermens Bend area but due to lack of suitable maps it is not possible to pinpoint the site. Areal (sic) photographs will be taken to assist and will be forwarded shortly.
59. The restricted word omitted from the letter was a reference to the second stage ceremony by which Aboriginal men are put through law. The ceremony, which is secret and sacred, forms an integral part of the process by which senior law men acquire their status in a traditional Aboriginal community. It is also the ceremony which, according to the oral history of Aboriginal witnesses, has been conducted at Kunin since time immemorial.
60. The significance of the 1968 request by the ‘Broome elders’ is threefold. First, the Broome elders obviously had personal knowledge of the site, not just for the storing of objects, but as a site for the conduct of the secret and sacred second stage ceremonies prescribed by Aboriginal law. There is no evidence of there having been any other site for that ceremony in or around the Broome area. Second, even if Hosokawa’s suggestion that first stage initiation ceremonies were transferred to Fishermen’s Bend after 1947 were accepted, that would not preclude the use of that location as a ceremonial site for the second stage initiation ceremony. I would add that because of the highly secret nature of the second stage ceremony, during which important and esoteric aspects of traditional law are revealed, it is not surprising that little appears to have been written or disclosed about its occurrence at Kunin. Third, this was the first recorded occasion on which Aboriginal elders had been consulted by non-Aboriginal persons in relation to the use of Kunin as a traditional law ground, as well as the first occasion on which any serious consideration was given to that topic by non-Aboriginal people.
61. By a letter dated 17 September 1969 the Shire expressed support for the reserve proposal stating that it:
has no objection to the excision of a portion of the Broome Common approximately seven (7) miles east of Broome, to be used by the aborigines for ceremonial purposes. It would be appreciated if you advise the area required once a survey has been done.
62. In the result the Shire of Broome, the Department of Native Welfare and the Western Australian Museum agreed that Reserve 30906 be excised from the Broome common reserve as a ‘Ceremonial Site’. The site was to contain two stores for sacred objects, which included objects used for the particular ritual identified in the notes of Daisy Bates. Although the initial proposal provided for the excision of an area of one square mile, the area reserved was slightly under half a square mile.
63. By notice published in the WA Government Gazette dated 2 July 1971, the Governor in Council set apart Public Reserve No 30906 for the purpose of a ‘Ceremonial Site’. By notice published in the same Gazette, Reserve 30906 was vested as a ceremonial site in the Minister for Native Welfare. On 23 March 1973 the Reserve was vested in the Aboriginal Lands Trust. By a notice published in the WA Government Gazette dated 29 June 1973 the purpose of the Reserve was changed to ‘Use and Benefit of Aborigines’. The latter two changes, which accorded with Government policy at the time, related to a large number of Aboriginal reserves and did not reflect any specific policy of the Government in relation to Kunin.
64. The inference I draw from the events that led to the creation of Reserve 30906 is that the Broome elders, the Broome Shire, the Museum and the Department of Native Affairs were in agreement that the site reserved was a traditional and sacred ceremonial site from which the public should be excluded. While that conclusion does not establish the antiquity of the site, it is likely that its protection was provided for on the basis that the site’s traditional status was of longstanding, rather than of recent, origin.
65. In 1975 the Aboriginal Lands Trust advised the Department of Lands and Surveys that a Broome Aboriginal group had applied for an extension of the Reserve on the basis that the group claimed ‘the present reserve is not adequate enough to carry out their sacred ceremonies and initiations’. In addition, the group indicated they would like access to the coast for fishing and trapping oysters. Although the group was not successful in its request for the extension of the Reserve, the authorities treated the request as bona fide. The view that the Reserve did not embrace all the areas required for the ceremonies carried out by Aboriginal people is consistent with the evidence given at the hearing that the Reserve was a minimum area required for traditional ceremonies.
66. Since the mid 1970s there has been considerable acrimony within the Aboriginal community in Broome in relation to the Reserve. Members of the Lee family, who are members of the Leregon clan, sought a lease in relation to the Reserve which involved, inter alia, a proposal for a mangrove crab farming venture. Although in 1979 the Aboriginal Lands Trust resolved to grant a lease to members of the family, the proposal met substantial opposition from other Aboriginal groups in Broome and did not proceed. It appears that senior Aboriginal elders strongly opposed the grant of the lease on the basis that it was not consistent with Aboriginal law. The dispute led to the commencement of Supreme Court proceedings to prevent the lease being granted.
67. From 1980 onwards the Leregon structures were constructed or placed on the Reserve, although the legal basis for that conduct is far from clear.
...
70. Conflict within the community over the use of the Reserve led to considerable strains on ceremonial life at the Reserve. Significant sacred objects were stolen from their repository leading to a successful prosecution of Colin Lee in relation to unlawful possession of those objects. Evidence was given by Patrick Dodson that the presence upon the Reserve of members of the Lee family and other uninitiated persons severely interfered with the conduct of traditional ceremonies at the Reserve. Notwithstanding these problems, in 1990 four young men were put through the first stage of initiation, which involved the conduct of traditional Yawuru ceremonies which have been carried out since the earliest times. The previous first stage ceremonies had been conducted at Kunin in 1980.
71. The most recent ceremony held at Kunin was in November 1994 when the then senior Yawuru law man participated in a ceremony in which two of the Rubibi applicants, Patrick Dodson and Joseph ’Nipper’ Roe, were ‘put through law’ in a second stage ceremony. The ceremony appeared to enable the devolution upon those applicants, together with others, of custodianship for Kunin. The senior law man disappeared shortly afterwards.
...
74. The Leregon applicants and the State ... relied upon certain Aboriginal Lands Trust minutes and other documents in relation to the dispute as evidence that senior law men and, in particular, Frank Sebastian, had acknowledged during the 1980s that Kunin was not a sacred law ground. The references relied upon are ambivalent but, more importantly, are not acknowledged or contained in documents signed by the persons concerned. In my view they do not warrant the conclusion that Kunin is not a sacred site.
75. The State, in the course of its submissions, and Dr Kolig, in the course of his evidence, accepted the bona fides of the evidence given by the various Aboriginal witnesses called by the Rubibi applicants, but suggested that there may be an element of self deception about their view of the historical use of Kunin as a law ground. It was contended that the only reliable and cogent evidence of the use of Kunin as an Aboriginal law ground related to its use as a law ground since 1947, after the transfer of sacred objects from the Thangoo law ground to Kunin. Particular significance was attached to the transfer as it was submitted that prior to 1947 Thangoo, rather than Kunin, was the law ground used by the Yawuru people to put their men through the law.
76. When the individual items of historical, anthropological and oral evidence are considered in isolation there might be some force in the State’s submission that it is far from clear that Kunin has been used as a traditional law ground since, at least, the 1890s and the early 1900s. I have concluded, however, that the evidence in each category supports the view of the historical and traditional use of Kunin contended for by the Rubibi applicants. I also find the unchallenged evidence of the Rubibi applicants’ witnesses personal experience (including what they were told by their parents and elders) of Kunin as a sacred law place and one which is dangerous to children to be inconsistent with the State’s contention that Kunin only became a ceremonial site after 1947.
77. It is also significant that in the late 1960s, on the first occasion on which any serious consideration was given by non Aboriginal persons to whether Kunin was a traditional ceremonial site, the ‘Broome elders’, the Department of Native Affairs, the Western Australian Museum and the Shire of Broome (who could all be expected to have some background knowledge of the traditional use and significance of Kunin) were in agreement that the Reserve should be established, not just as a repository for sacred objects, but as a traditional ceremonial site from which the public were to be excluded.
78. Having regard to the foregoing matters I am satisfied, on the balance of probabilities, that the evidence establishes that Aboriginal people were living in proximity to the claim area since, at least, the 1890s and the early 1900s and that those people lived in a society that observed traditional laws and customs. I am also satisfied, on the balance of probabilities, that one of the traditional laws and customs observed by that society was the use of Kunin as a traditional Aboriginal law ground.
79. Of course, the earliest evidence probative of any such usage was in the late 1890s and early 1900s. However, as the dislocation of Aboriginal communities only occurred after the Broome area was settled by non-Aborigines late in the 19th century, the obvious inference to be drawn from the traditional usage established by the evidence is that it was a continuation of prior use of Kunin as an Aboriginal law ground throughout the 19th century. Accordingly, I am satisfied that, as at the date of sovereignty, being 1829, Kunin was used as an Aboriginal law ground in accordance with the Aboriginal law and tradition which, as I later explain, were believed by Aboriginal people to have been laid down in the Bugarrigarra (referred to colloquially, but probably somewhat inadequately and inaccurately, as ‘the Dreamtime’).
80. An issue was also raised by the State as to whether Kunin had, as a matter of fact, fallen into disuse as a law ground with the consequence that any traditional connection with Kunin had not been substantially maintained. The last first stage initiation ceremonies were held at Kunin in 1990 and the last second stage ceremonies, which were for Patrick Dodson and Joseph ’Nipper’ Roe, were held there in 1994. Although ceremonies have not been performed at Kunin since 1994, Mr Dodson stated that for the Yawuru people the role of the law ground extends beyond the ceremonies that are performed there. The point made by Mr Dodson is that as the law ‘goes on’, the existence of Kunin as an Aboriginal law ground is not limited to its physical use and occupation during ceremonies from time to time. He stated that the sacred objects, which continue to be located at Kunin, have their own special significance under Aboriginal law. Further, because of the importance of the law ground, Mr Dodson stated that he and the other senior law men travel there from time to time to keep ‘it safe’ and to protect ‘what is in the ground’. The senior Yawuru law men regarded it as their continuing obligation to maintain and protect the law ground from intrusion by persons not authorised under Aboriginal law to be there and to enable men to be put through the law at Kunin in the future. As a consequence, the senior law men have continued to oppose any use of Kunin or any development of the surrounding areas that might impede the continued use of Kunin as a traditional law ground.
...
83. Patrick Dodson ... gave evidence of the continuing significance of senior Yawuru law men ‘speaking’ for the law at Kunin. He said:
To speak for the law, around which that Reserve is drawn, means that the responsibility to continue the law is the responsibility of those men, the Yawuru men. It means to make the judgments about people who may or may not be permitted to go through the law. It means to protect and look after that ground from interference from people who shouldn’t be there, or people who are in the road of where the law has to travel when it comes there.
84. The present case affords a good example of the danger of a Court accepting a ‘historical snapshot’ of the cessation of traditional practice or of the observance of traditional law and custom: see the Yorta Yorta case at [59] per Black CJ. The evidence supports the conclusion that, in accordance with traditional law and custom, senior Yawuru lawmen have continued to exercise their traditional role and function in respect of Kunin and the sacred objects stored there. The evidence also demonstrates that, notwithstanding gaps in the ceremonial use of Kunin as a law ground from time to time, the continuing traditional use of Kunin as a law ground has been substantially maintained.
85. Accordingly, I have concluded that the evidence establishes that Kunin has been used and continues to be used as an Aboriginal law ground since 1829 in accordance with Aboriginal law and custom ....
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94. I am satisfied that the Rubibi applicants have established that the claim area was used as a traditional Aboriginal law ground at and since 1829. They claim that the use has been by members of the Yawuru, Djugan and Goolarabooloo peoples.
95. There was some evidence that the Djugan, rather than the Yawuru, people held a traditional connection to Kunin. Hosakawa’s thesis was relied upon by the State to suggest that when the Yawuru people from Thangoo moved to the Kunin and Broome areas in the late 1940s they brought their language and law with them, supplanting the Djugan people who spoke a Yawuru dialect. A linguistic report by Mr Clendon supported the view that Djugan was a dialect of Yawuru, but Mr Clendon stated that Yawuru ‘appears to have been spoken continuously in the Broome area from before contact with Europeans until the present’.
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98. In my view the State’s contention that if any people can establish the requisite traditional connection with Kunin it will be the Djugan people, is not supported by the evidence. Evidence, which was largely unchallenged, was consistently given by the Rubibi witnesses that the Djugan community are part of the Yawuru people. Further, the fact that Djugan is a dialect of Yawuru is not helpful to the State. The State did not call any witness who said they were Djugan but not Yawuru. As the State’s expert linguist Mr Clendon stated:
There is, moreover, a question about the denotative content of labels such as ‘Jukun’, ‘Minyjirr’ and ‘Walman’. A good deal of confusion in this area may be avoided once it is realized that speech varieties (dialects) are not the same kinds of things as people and that labels designating the one are usually not able to be mapped onto the other (local groups, extended families, clans etc) in any kind of unique or exclusive manner.
99. I am satisfied that, at least in relation to their traditional connection to Kunin, the Djugan people are a sub-group of the Yawuru people. Further, as such, they do not have, and do not contend that they have, a discrete or independent connection to Kunin as a traditional law ground.
100. I am also satisfied that it has not been established that the Goolarabooloo people have a relevant traditional connection to Kunin. Counsel for the Rubibi applicants accepted that the Goolarabooloo ‘don’t assert an interest in that law ground, they do not practice law at that law ground, and they acknowledge the responsibility of the Yawuru lawmen for the law ground’. The reason the Goolarabooloo people have not practiced law at Kunin is because it was not part of their creation story and although the Goolarabooloo people may share aspects of the law with the Yawuru people, those aspects are not such as to establish that they have a native title right or interest in relation to Kunin. Accordingly, any reference hereafter to the Rubibi claimant group is a reference to the group that includes the Djugan, but excludes the Goolarabooloo, peoples from that group.
101. For the above reasons I am satisfied that the Yawuru people (including the Leregon and the Djugan), but not the Goolarabooloo people, have established a traditional connection with Kunin by reason of their use of Kunin, since 1829, as a law ground in accordance with the traditional law and custom.
102. The remaining major issue of fact was whether the present Yawuru community claiming to hold native title is an identifiable traditional community that has continued, as such, to maintain a traditional connection with Kunin since 1829. While this issue is concerned essentially with whether the present Yawuru community is the traditional Aboriginal community that holds native title rights and interests in relation to Kunin, a helpful starting point, for present purposes, must be my finding that Kunin was used as a traditional law ground for Yawuru people at and
since 1829.
103. The anthropologists were in dispute over whether the current Yawuru community is the traditional community that has used Kunin as a law ground since 1829. Dr Sullivan considered that the concept of a ‘society’, rather than that of the clan, tribe or language group provides a more useful basis for communal identification in the present case. He stated that the current Yawuru community has a traditional communal attachment to Kunin and to the other land traditionally occupied or used by the community. Dr Kolig did not dispute that the Yawuru community defined by Dr Sullivan may constitute a reasonable sociological construct of the present day community but disputed that it was that community that had possessed a traditional attachment to Kunin at and since 1829.
104. Dr Sullivan claimed that the community he defined has a shared history, a shared language (which is still spoken among some of its members) and shared patterns of relationships, in particular, kinship relationships. He said that:
...it’s a community that shares understandings of the natural world; it has shared behaviours in the exploitation of the natural world; it has conventional ways of relating to its members that are different from the ways that it relates to other Aboriginal people and to non-Aboriginal people.
105. In the above context Dr Sullivan claimed the current Yawuru community is constituted primarily of Yawuru persons who can establish ambilineal descent from a Yawuru person and who follow Yawuru tradition and culture. He said a Yawuru person was one who would self-identify, and be identified as such by other members of the Yawuru community. Dr Sullivan regarded adoption of the concept of the birth spirit (rai), the holding and passing on of received traditional knowledge, including a belief in the Bugarrigarra, residence and birth in Yawuru country and descent from Yawuru antecedents, as the factors that lead to both self recognition and Yawuru communal recognition of a Yawuru person having a traditional attachment to Yawuru land.
106. The State criticised Dr Sullivan’s approach on the basis that he was ‘working backward from what is said to be the present situation, to arrive ... at a predetermined conclusion’. The State submitted that the correct approach to determining continuity was that adopted by Dr Kolig, namely to ‘identify essential features of the traditional culture and to determine the correspondence between those features and the present situation’.
107. Ultimately, the Court is required to undertake a fact finding process involving questions of degree. Whether a forward or a backward looking approach is appropriate in a particular case will depend on the facts being investigated. There is, however, considerable force in the observation made by Black CJ in the Yorta Yorta case at [50] that ‘[a] process that begins, however, with an assessment of what is claimed at the present time has the fundamental advantage of allowing adaptations and evolution to be seen for what they are and, in some instances, to be recognised at all’.
108. Evidence was given by many of the Rubibi witnesses about a number of the matters listed by Dr Sullivan as being factors that can lead to recognition of persons as members of a community having a traditional attachment to Yawuru land.
109. The first such factor, rai, was described by Dr Sullivan as follows:
Among the spirits which Broome fishers and hunters call out to after a long absence are those that are said to enter a woman as the essence of the child she is to give birth to. These are called ‘rai’. The means of entry is usually a food species she has eaten. The child is frequently born with the mark of the spear, digging stick or other implement upon it. Thus each individual is linked to naturally occurring species, precise locations, father and mother (it is usually the father who has done the hunting or at least has ‘dreamed’ the child spirit the woman has ingested) and the world of spirits and mythic ancestors, since the rai have been left in the landscape during the creative epoch, bugarigara, or Dreamtime.
The belief in spirit children is almost universal in Aboriginal Australia. Some anthropologists have concluded that in pre-contact times Aborigines had no understanding of the importance of insemination in conception and understood the entire process to be originated by the reception of a spirit child, or rai.
110. Rai was also described by Dr Sullivan as ‘conception totemism’, which is a primary regulator of land attachment. Dr Sullivan explained that rai cuts across the descent process, making the system infinitely more flexible. A Yawuru person’s rai will be located on Yawuru country and be ascertained from when the child is born. Thereafter, it directly links the child with that area. Dr Sullivan stated the belief in rai to be ‘a belief in the unity of spirit, land, myth, and person’.
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111. It was clear from the evidence of almost all of the Rubibi witnesses that the concept of rai has been, and remains, important to Yawuru persons and that it links them in a unique way to their land.
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113. Mr Dodson’s evidence in relation to the second factor listed by Dr Sullivan, namely the passing on of received traditional knowledge, including knowledge concerning the Bugarrigarra, was that the law at Kunin derived its existence from the Bugarrigarra, a belief which was at the core of the Yawuru people’s cultural and spiritual existence. He 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.
114. In subsequent evidence given in restricted session, the content of which was agreed to be made available in public session after the exclusion of matters required to be maintained in confidence, 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.
118. The evidence of the Rubibi witnesses, again largely unchallenged, was of the holding, passing on and receiving of the Yawuru community’s traditional knowledge and law (including rai) as laid down in the Bugarrigarra.
119. Mr Dodson’s evidence set out above referred to another aspect of that knowledge and law, namely kinship relationships in the Yawuru community. Central to the kinship system is the concept of skin groups. There are four different ‘skin groups’ in the community, and the skin group to which Yawuru persons belong places them in a certain kin relationship with everyone else. A Yawuru person at birth takes his or her skin relationship from the person’s mother. Skin determines who the person may marry and governs the person’s role in rituals and ceremonial activities, such as burials, as well as behaviour towards others. An important aspect of the skin concept is the obligation of skin brothers to take responsibility for putting young men through the law.
120. Most of the Yawuru witnesses acknowledged their skin group. The State conceded that ‘many people are aware of its existence’ but contended that the evidence does not establish that the system has been substantially observed. Although many witnesses had ‘right way marriages’ (a marriage to a person of the correct skin group) some witnesses admitted to ‘wrong way marriages’ (marriage to a person in a proscribed category). According to the evidence of the Aboriginal witnesses, the skin system has worked well and is still believed to control who should marry whom and governs responsibilities within the community. For example, Mrs Elsie Edgar stated:
Nowadays, some young people marry wrong way, but the Yawuru rule for marriage still works, because when young people stop together and they are really wrong way, the old people will separate them.
121. Frank Sebastian gave evidence that he ‘got a hiding’ from his parents for marrying ‘wrong way’ but said that it was too late to separate because his wife was pregnant.
122. Although many of the Rubibi applicants’ witnesses accepted that in contemporary society the rules concerning relationships between different skin groups are breaking down and becoming more difficult to enforce, the skin system nevertheless continues to be recognised and accepted by the Yawuru people as an integral part of their traditional and cultural life.
123. Evidence was adduced about two other kinship customs which continue to be recognised by the Yawuru community: gumbala relationships and the concept of malinyanu. Mrs Elsie Edgar explained that a gumbala ‘means someone with the same name, a name that is given to you from that family. You have to look after your gumbala, give them things, like clothes’. The malinyanu concept means that mother-in-laws and son-in-laws may not look at each other or speak to each other. There was evidence of the continued practice of this custom during the trial; a screen was erected to prevent mother-in-laws and son-in-laws attending the hearing from seeing each other. A current Yawuru phrasebook contains phrases such as ‘Don’t come here; your son-in-law is here’.
124. A further aspect of Yawuru tradition is knowledge and use of Yawuru language. That knowledge and use is no longer extensive throughout the claimant group although some of the witnesses attested to speaking Yawuru with other members of the group. A current phrasebook of the Yawuru language, which was tendered in evidence, was dedicated to ‘three Yawuru speakers Mrs Doris Edgar, Mrs Thelma Saddler and Mrs Elsie Edgar’, all members of the claimant group. Further, evidence was given of a number of efforts made by the Yawuru community to ensure the preservation of the Yawuru language. For example, Ms Tarran stated that there is a Yawuru language program in Broome schools and that a language program was being established by the Bugarrigarra Nyurdany Arts and Culture Centre.
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127. The evidence to which I have referred was not seriously in dispute. That evidence, together with the evidence upon which I have relied in finding that Kunin was used as a traditional law ground since 1829 plainly evidences the holding and passing on and receiving of traditional knowledge within a community that has recognised and used Kunin as a traditional law ground. It was also not seriously in dispute that the persons doing so were generally resident or born in what they would refer to as Yawuru country. Whether that ‘country’ is land in respect of which those persons hold native title rights and interests is the subject of another proceeding and does not presently arise for consideration. The State claimed that witnesses called by the Rubibi applicants had not established ancestry from members of the clans traditionally associated with Kunin and the surrounding land. However, the Rubibi applicants did not put their case on the basis that Kunin was the ‘country’ of any one particular group of Yawuru people. Rather, they claimed that it was their, and their ancestors’, traditional connection with Kunin as a law ground that provided the requisite nexus between Kunin and the Yawuru people.
128. Dr Kolig, however, claimed that the current community, modelled on ambilineal descent, is not the same traditional community that used Kunin at and since 1829, which was modelled on patrilineal descent. Dr Sullivan’s riposte was that the traditional social structure of the Yawuru community, which now uses Kunin as a law ground, was not substantially different to that of traditional Yawuru community that used and occupied Kunin in 1829. He stated:
...the Aboriginal people of the Broome region who call themselves variously Yawuru, Djugan, and Goolarabooloo have an unbroken connection with the land and the population since before the assertion of British sovereignty, that they constitute an organised land-holding society, and that they continue to occupy the land under claim according to their traditional customs.
129. Dr Sullivan contended that the traditional community originally held land communally as a regional group. He stated that the area around Broome is an arid area and that the conclusions in the ethnographic literature in relation to patrilineal clan-based holdings are inapplicable to the traditional community because they are based on a model of social organisation that does not apply to an arid region. Dr Kolig disputed that proposition but Dr Sullivan stated that it would make very little difference to his conception of the Yawuru community if the evidence were not able to establish ambilineal descent in times past. He stated that this was because there are other important aspects of being a member of the Yawuru community. Of course, even if the patrilineal social organisation of traditional Aboriginal society were accepted, it does not follow that the gradual shift to the ambilineal social organisation of that community results in the cessation of continuity between the pre-contact community and the present community.
130. Dr Kolig said that the relevant community at sovereignty was based on a clan model and that primary rights in land were conferred by patrilineal descent. Such clans were said to be exclusive in their territoriality in the sense of being a politically organised landholding group. The estate was said to be held by the relevant community in the broader Kunin area because the patri-clan occupied a given territory, speaks mutually intelligible dialects, has a common kinship system and generally shares the performance of ceremonial rights of interest to them. Dr Kolig insisted that continuity of the patri-clan model of traditional Aboriginal society is a precondition to recognition of the Yawuru community as descendent from the traditional Aboriginal community that maintained any traditional connection with the broader Kunin area in 1829.
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134. Ultimately, Dr Kolig contended that the community he defined that existed in 1829 had broken down to such an extent that it was no longer an identifiable community in anthropological terms. He accepted that identification of the same traditional community from time to time must allow for ‘reasonable change’ as a result of the community structure and its culture continuously responding to the shifting needs of each generation. But he claimed that the broad criteria proffered by Dr Sullivan went beyond what might be accepted as reasonable change. In essence, Dr Kolig’s view appeared to be that, while he may not disagree with the proposition that the Yawuru community defined by Dr Sullivan might constitute a reasonable sociological construct of the present day community, it was not the same community that had a traditional attachment to Kunin as a traditional law ground in 1829. Rather, he argued that the current Yawuru community is substantially a response to the post World War II urbanisation of Broome and the removal of traditional Aboriginal communities from surrounding pastoral stations, and in particular, Thangoo, to camps around Broome.
135. Dr Kolig queried whether the mechanisms relied upon by Dr Sullivan to define the relevant community (ambilineal descent, spirit origin (rai), initiation, custodian of religious knowledge (sacred sites), ritual, dreaming tracks, and in some instances, residence) have evolved as part of a traditional cultural response to new forces or whether they have been created as new traditions and therefore have broken the chain of continuity.
136. Ultimately, the substantive dispute between the two anthropologists was less than it might appear to be. Both accepted that it is not possible to have a definition of a traditional community that is frozen in time. Rather, they agreed that the definition must recognise the process by which a community’s traditional laws and customs evolve, respond and adapt to change. That approach finds substantial support in the cases. Most recently in the Yorta Yorta case Branson and Katz JJ accepted that traditional laws and customs evolve, adapt and change over time. Their Honours stated at [127].
The test of whether a law acknowledged, or a custom observed, is a traditional law or custom is, in our view, principally an objective test. The primary issue is whether the law or custom has in substance been handed down from generation to generation; that is, whether it can be shown to have its roots in the tradition of the relevant community. However, for the reasons so persuasively articulated by Toohey J in Mabo [No 2] at 192 (see para [118] above), it cannot be accepted that the fact that an indigenous society has adopted certain aspects of the now dominant culture means that the society has necessarily abandoned its traditional connection with land or waters.
137. Black CJ stated at [59], in the context of cautioning against use of the ‘historical snapshot of adventitious content’ of a community’s traditional laws and customs:
It may well be necessary to have regard to events over a long period if misconceptions about adaptation and change are to be avoided. Recognition of the extent to which adaptation and evolution can take place without laws and customs ceasing to be ‘traditional’ is of critical importance when any comparison is made between the situation at two widely separated points of time.
138. And at [72]:
If due recognition is to be given to the capacity of native title to survive transition from its existence within a fully traditional lifestyle to its existence within a lifestyle changed by contact with a very different culture, any consideration of a period in which changes were taking place consequent upon the impact of European settlement must take full account of the possibility of adaptation to the changing circumstances of the time.
139. Although Dr Kolig accepted that allowance must be made for ‘reasonable’ change and presented substantial criticisms of Dr Sullivan’s analysis, he offered no clear guidance as to why the matters relied upon by Dr Sullivan do not fall within the concept of reasonable change to the interruption to traditional life. Dr Kolig conceded that, on the question of continuity, the evidence is in general unclear and suggests that it is ‘impossible to say just how much “culture” had been lost’ before the recent cultural revival and how much had to be ‘imported’ or ‘re-learned’ in order to revive or revitalise at least a semblance of the old culture. When Dr Kolig was asked whether a change from a patrilineal clan group to an ambilineal group would fall within his concept of ‘reasonable’ change, Dr Kolig said:
I think there would be consensus in the anthropological community that such changes might not be considered unreasonable. Whether this then constitutes a break in continuity is a different matter. But the changes in themselves would be considered reasonable, I think.
140. The problem with Dr Kolig’s approach is that the concept of ‘reasonable’ change is problematic and requires some unstated value judgment to be exercised on a question that essentially is one of fact and degree.
141. An example of the difficulties arising from Dr Kolig’s approach is the process by which Patrick Dodson and Joseph ‘Nipper’ Roe had been put ‘through law’ in a second stage ceremony without having been initiated in a first stage ceremony. The senior law man at the time was concerned about maintaining Yawuru culture and decided that the most appropriate way of doing so, and thereby preventing its disintegration, was to put Mr Dodson and Mr Roe, as two highly respected senior Yawuru men, ‘through law’. While the process and its purpose, was traditional, the mode of selection (putting uninitiated men through the second stage ceremony) was not. Whether the adaptation was ‘reasonable’ is not easily answered. However, it was plainly an adaptation of traditional law and custom to meet changing circumstances. The process adopted had the purpose of maintaining traditional law and custom and, as the present case demonstrates, it has had some success in doing so.
142. In my view the question is not one of reasonable change but rather whether the evidences establishes that the present community is the community that has substantially maintained its traditional connection with Kunin in accordance with traditional laws and customs. In that context I do not find it necessary to make a finding on whether the relevant traditional community in 1829 was based on a patrilineal or an ambilineal model because I am satisfied that even if there was, originally, a patrilineal model, the evolution to an ambilineal model was part of a process of the community’s evolution to its present traditional form, rather than the creation of a new community. It was clear from the evidence that white contact had a significant effect on the traditional community. For example, evidence was given that an ambilineal community model evolved in part to bring within the community the children of Yawuru women who were fathered by the white settlers. More importantly, I am satisfied that the traditional Yawuru community, in accordance with its evolving but traditional laws and customs, accepted as its members persons who became a member by ambilineal, rather that patrilineal, descent.
143. The continued respect for, and recognition of, Kunin as a traditional law ground by members of the current Yawuru community and its continued use for putting male members of that community ‘through law’ is an example of the continuity of the traditions of the Yawuru community. The evidence, to which I referred earlier, relating to rai, kinship system, the Bugarrigarra, the passing down of traditional knowledge and law and continued, albeit sparse, use of Yawuru and its dialects within the community, all tend to establish that the present community has maintained communal traditions, customs and laws. I do not regard the evidence as establishing that those traditions have ceased to be observed in accordance with Yawuru custom and law.
144. The remaining issue relates to whether the genealogical evidence as to descent establishes that the present Yawuru community, represented by the Rubibi claimant group, is descended from the traditional community that used Kunin as an Aboriginal law ground.
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150. The Rubibi applicants tendered genealogical evidence of the ancestral history of members of the Rubibi claimant group and, in particular, evidence showing ambilineal descent from the apical ancestors listed in the Rubibi applicants’ application.
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152. Ms Kimal Barrett, a consultant anthropologist responsible for preparing the genealogies, identified approximately 80 apical ancestors as antecedents of the Rubibi applicants living in or around Broome in the late 1800s. She concluded that ‘[a] distinct group of antecedents was therefore living from the land in and around Broome from whom the present native title claimants are descended’. For example, on the basis of the genealogies she was able to establish that:
153. The State accepted that the genealogies founded the inference that some members of the Rubibi claimant community are descended from Yawuru ancestors living around Broome at the turn of the century.
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156. The State claimed that it was not possible to assume that the community established to be in existence in the 1890s was ancestrally linked to the one in existence at the acquisition of sovereignty because the development of the pearling industry in Broome around the turn of the century may have broken the biological link.
157. It was common ground that the genealogies which were tendered in evidence could not be accepted as a perfectly accurate representation because, inter alia, of the difficulties arising as a result of the absence or generality of historical records and the extent to which reliance was necessarily placed on hearsay in constructing them. From time to time the genealogies were amended to deal with matters raised by parties and non-parties and, in the result, alternative views of some of the genealogical connections were tendered as evidence.
158. Ultimately, the State did not challenge the methodology used in preparing the genealogies but, rather, submitted that the evidence upon which the genealogies were based was inherently unreliable and that more extensive evidence ought to have been led by the applicants and other members of their community who were in the best position to tell the Court of their understanding of their family history. However, many of the witnesses corroborated the genealogies during their oral evidence and the Rubibi applicants also provided affidavits by a number of the claimants attesting to the genealogies that related to them or their families.
159. I am satisfied that the genealogies, corroborated by the evidence of the witnesses, demonstrate that on the balance of probabilities the Rubibi claimant group includes ancestral descendants of the apical Yawuru ancestors, putting to one side ancestors known to be Goolarabooloo, set out in Schedule A to the Rubibi applicant’s application. As I stated in the Croker Island case at [360], ‘descent from ancestors, who were members of that community, is not to be established by a narrow or technical approach to that issue’.
160. The genealogies have been constructed on the basis of ambilineal descent, rather than patrilineal descent. Even if the genealogies were constructed on the basis of patrilineal descent it would not necessarily follow that the claimed community does not exist; rather, it would probably be considerably smaller than the ambilineal community.
161. Accordingly, I am satisfied that for the purposes of the present claim the members of the present Yawuru community claiming to hold native title constitute an identifiable traditional community that has continued, as such, to maintain its traditional connection with Kunin as an Aboriginal law ground since 1829.
162. Reserve 631 [out of which Reserve 30906 was created] was set aside as a public reserve for public purposes on 24 November 1883 in accordance with Regulation 29 of the Land Regulations 1882 (WA). Although there was power to vest the Reserve in a corporation, that power was not exercised and Reserve 631 was not vested in any person or body.
163. In 1905, pursuant to Pt III of the Land Act 1898 (WA), Reserve 631 was placed under the control and management of the Mayor and Councillors of the Municipality of Broome. In 1919 the Reserve was placed under the control and management of the Broome Road Board. By-laws were made by the Shire in 1907 and by the Board in 1919. The by-laws were principally concerned with managing the depasturing of stock. In 1971, as explained above, Reserve 30906 was excised from the larger area of Reserve 631 and was vested in the Minister for Native Welfare for the purpose of a ‘Ceremonial Site’. In 1973 Reserve 30906 was vested in the Aboriginal Lands Trust for the ‘Use and Benefit of Aboriginies’ (Sic). Apparently, the change came about because the government decided all land set aside for the benefit of Aborigines would be vested in the Trust which was to have a power to lease. The power has not been exercised in respect of Reserve 30906. No distinction appears to have been made between sites having and not having ceremonial significance.
164. The State accepts that the creation of Reserves 631 and 30906 did not extinguish native title. However, initially it contended that the reservation of Reserve 631 for public purposes, and the making of by-laws with respect to the Reserve, extinguished any exclusive native title rights to possess, occupy, use and enjoy the land.
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169. The State accepted that there was no evidence before the Court of the physical use of Reserve 631 as such which would be inconsistent with the continued enjoyment of the exclusive native title rights claimed by the Rubibi claimant group.
170. The State also contended that the making of by-laws with respect to the depasturing of stock and other activities on the land destroyed the exclusivity of any native title right to make decisions about the use and enjoyment of the land; access that persons have to the land; and control of the use and enjoyment by others of the resources of the area. The by-laws that were relied upon were published in the Government Gazette W.A. on January 11, 1907, March 31, 1911 and November 14, 1919. Although unable to point to any particular by-law that was inconsistent with the native title rights claimed, counsel for the State submitted that the very fact that there are by-laws that prohibit or regulate certain categories of usage of the Reserve meant that persons holding native title rights could not have the exclusive right to make decisions about what happens on the Reserve.
171. The State, however, conceded that its argument that the creation of the Reserve and the by-laws extinguished the exclusivity of native title was probably ‘academic’ as it accepted that s 47A of the NTA appeared to apply with the effect that any prior extinguishment is to be disregarded. Section 47A provides:
(1) This section applies if:(a) a claimant application is made in relation to an area; and
(b) when the application is made:
(i) a freehold estate exists, or a lease is in force, over the area or the area is vested in any person, if the grant of the freehold estate or lease or the vesting took place under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or
(ii) the area is held expressly for the benefit of, or is held on trust, or reserved, expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; and
(c) when the application is made, one or more members of the native title claim group occupy the area.
(2) For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by any of the following acts must be disregarded:(a) the grant or vesting mentioned in subparagraph (1)(b)(i) or the doing of the thing that resulted in the holding or reservation mentioned in subparagraph (1)(b)(ii);
(b) the creation of any other prior interest in relation to the area, other than, in the case of an area held as mentioned in subparagraph (1)(b)(ii), the grant of a freehold estate for the provision of services (such as health and welfare services).’
172. The State submitted that the requirements in s 47A(1) appeared to apply in the present case as when the claimant application was made one or more members of the native title claim group occupied the claim area. It accepted that the occupation of part of Reserve 30906 by Colin Lee and other members of the Leregon claimant group and the Rubibi claimant group’s use of the area as a Ceremonial Site appeared to constitute occupation for the purposes of s 47A(1)(c). Relevantly, in that regard in Ward at [449] Beaumont and von Doussa JJ stated:
We think a broad meaning should be taken of the word ‘occupy’ in the requirement in s47A(1)(c) that one or more members of the native title claim group occupy the area. We think this requirement is met where a claimant member is one of the many people who share occupancy, and that the land may be relevantly occupied even though the person is rarely present on the land so long as that person makes use of the land for the reserved purpose as and when the person wishes to do so.
173. The State therefore ultimately accepted that, pursuant to s 47A(2)(a) and (b), any extinguishment of exclusive native title rights and interests in the claim area by reason of the creation of the Reserve must therefore be disregarded. It also accepted that the making of the by-laws fell within the definition of ‘interest’ in s 253 of the Act which included ‘...(b) any other right...charge, power or privilege over, or in connection with (i) the land or waters...’ Thus, under s 47A(2)(b) the making of the by-laws was also to be disregarded.
174. Counsel for the Rubibi applicants submitted detailed written submissions on the issue of extinguishment. The Rubibi applicants submitted that the creation of Reserve 631 for public purposes, the placing of the Reserve under the control and management of the Shire and the Board and the making of the by-laws did not clearly and plainly evidence an intention to extinguish native title in the claim area within the Reserve. Thus, so it was said, there had been no extinguishment of exclusive native title rights and resort to s 47A of the Act was unnecessary
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180. The Rubibi applicants contended that if their submission concerning extinguishment was not accepted, s 47A of the Act would apply and require the Court to disregard ‘any extinguishment’ constituted by the acts specified in par (a) and (b). They agreed that the present case is one in which the provisions of s 47A(1)(a) and (b)(ii) are satisfied. However, they disagreed with the State’s contention that the Leregon applicants or members of the Lee family relevantly occupied Reserve 30906. Rather, they contended that the Rubibi applicants had occupied the claim area by virtue of the control and supervision exercised over the law ground by senior Yawuru law men from time to time, as well as by the conduct of ceremonies and storage of sacred objects on the claim area.
181. In the creation of Reserve 631, its management and control by the Shire or the Board and the making of the relevant by-laws, there is an absence of evidence of any intention to interfere with, impede or otherwise affect the rights of the Yawuru people to use the claim area exclusively as a traditional law ground. Further, there is no evidence of any use or occupation of the claim area for any public purpose that is inconsistent with the exclusive use of the claim area as a traditional law ground. In these circumstances there is much force in the contention of the Rubibi applicants that there has been no extinguishment of the exclusive right to use the claim area as a traditional Aboriginal law ground.
182. However, I have not found it necessary to resolve that issue as I am satisfied that s 47A operates to require that any prior extinguishment be disregarded. In particular, I am satisfied that the following constitutes occupation of the claim area for the purposes of s 47A(1)(c) of the Act:
183. Accordingly, the exclusive native title rights and interests claimed by the Rubibi claimant group have not been extinguished.
184. As explained earlier, it is not really in dispute that the Leregon applicants are a sub group of the Yawuru people and, as such, are entitled to participate in the benefit of the native title rights and interests held by the Rubibi claimant group. I am not satisfied, however, that the Leregon applicants have established any independent right to any other native title rights or interests in relation to the claim area. Indeed, the case put on behalf of the Leregon applicants did not really seek to establish any such rights. Rather, as stated above, the thrust of the Leregon applicants’ case was to limit the Rubibi claimant group’s entitlement to specific sacred sites or areas within the claim area that were used as ceremonial sites. For the reasons set out above, I have concluded that the Rubibi applicants have established their claim to native title rights and interests in respect of the whole of the claim area.
185. There is, however, an issue between the Leregon applicants and the Rubibi applicants in relation to the Leregon structures that requires resolution.
186. Section 225 of the NTA provides that if a determination of native title is made, a determination must be made concerning, inter alia:
(a) the nature and extent of the native title rights and interests in relation to the determination area;
(b) the nature and extent of any other interests in relation to the determination area; and
(c) the relationship between the rights and interests in paragraphs (b) and (c) taking into account the effect of this Act.
187. There is an issue as to whether s 225 requires the Court to make a determination regarding whether or not the Rubibi applicants or other members of the claimant group will have the right to remove the Leregon structures and prevent further unauthorised residential use and occupation of the claim area. That issue raises a question as to the role of the Court in determining a dispute between members of a claimant community in the context of a native title determination.
...
192. The Rubibi applicants’ case is that the current residential use of part of the claim area is without the authority or permission of the senior Yawuru law men and is contrary to traditional Yawuru law and custom. However, the legal right of the Rubibi applicants or of the Rubibi claimant group to prevent the continuation of that use, and, if necessary, to remove the Leregon structures was not the subject of submission. A question arises as to whether those issues ought to be resolved after a determination of native title has been made or as part of the process of making that determination. Having regard to the obvious animosity that exists between the two groups, there is much to be said in favour of these issues being resolved as part of the existing dispute or controversy, rather than as a separate and subsequent controversy. In the circumstances it is appropriate to make provision for submissions on these issues, including submissions as to the manner in which the dispute is to be determined. Accordingly, my conclusions are necessarily subject to any matters that might arise as a result of those submissions.
193. The Rubibi applicants have established that native title exists in relation to Reserve 39631. The common or group rights comprising that native title are held by the Rubibi claimant group (including descendants of the Djugan people but excluding claimants relying solely on descent from the Goolarabooloo people) (‘the claim group’) the members of whom are entitled to a determination of native title. The determination will include the following matters:
(a) native title exists in relation to Reserve 30906 (‘the area’);
(b) the native title in relation to the area is held by the claim group, being the common law holders set out in Schedule A to the application, who are members of the traditional Yawuru community;
(c) the native title held by the claim group confers upon them the right of occupation, use, possession and enjoyment of the area, as against the whole world, ‘for ceremonial purposes’;
...
Counsel for the First Applicant:
Mr Kevin Bell QC
Mr George Irving
Solicitor for the First Applicant:
Kimberley Land Council
Appearing for the Second Applicant:
Mr David Johnson
Counsel for the Respondent:
Ms Raelene Webb
Mr Barry King
Solicitor for the Respondent:
West Australian Crown Solicitor
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2001/19.html