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Federal Court of Australia - Full Court |
Last Updated: 2 May 2008
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 www.fedcourt.gov.au.
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] FCA 1833; (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] HCA 56; (2001)
208 CLR 1
Dale v Moses [2007] FCAFC 82
Daniel v Western
Australia [2004] FCA 849; (2004) 138 FCR 254
De Rose v South Australia (No 1)
[2003] FCAFC 286; (2003) 133 FCR 325
De Rose v South Australia (No 2) [2005] FCAFC 110; (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] FCA 1248; (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] HCA 23; (1992) 175 CLR 1
Members of the Yorta Yorta Aboriginal Community v
Victoria [2002] HCA 58; (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] HCA 58; (1975) 135 CLR 337
Northern
Territory of Australia v Alyawarr, Kayteye, Warumungu, Wakaya Native Title Claim
Group [2005] FCAFC 135; (2005) 145 FCR 442
Rubibi Community (No 5) v State of
Western Australia [2005] FCA 1025
Rubibi Community v Western
Australia [2001] FCA 607; (2001) 112 FCR 409
Rubibi Community v State of Western
Australia (No 2) [2001] FCA 1553; (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] HCA 3; (1989) 166 CLR 161
Sydney Harbour Trust Commissioners v
Harriott [1923] HCA 14; (1923) 32 CLR 53
Transurban City Link v Allan [1999] FCA 1723; (1999) 95
FCR 553
Ward v State of Western Australia [1998] FCA 1478; (1998) 159 ALR
483
State of Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1
Western Australia v Ward [2000] FCA 191; (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)
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DATE OF ORDER:
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WHERE MADE:
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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.
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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA
|
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BETWEEN:
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THE STATE OF WESTERN AUSTRALIA
Appellant/First Cross-Respondent |
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AND:
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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 |
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JUDGES:
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BRANSON, NORTH AND MANSFIELD JJ
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DATE:
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2 MAY 2008
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PLACE:
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ADELAIDE (VIA VIDEOLINK TO PERTH & MELBOURNE)
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REASONS FOR JUDGMENT
TABLE OF CONTENTS
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 20th 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] HCA 58; (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] HCA 58; (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] FCA 1553; (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.
9 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] FCA 607; (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
10 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.
11 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.
12 The matter did not resolve by agreement.
13 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.
14 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.
15 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).
16 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.
17 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.
18 The grounds of appeal and cross appeal are extensive, but may be briefly summarised as follows.
19 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.
20 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.
21 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.
22 The appeals and the cross-appeal were heard together.
23 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:
24
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
25 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.
26 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
27 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] HCA 28; (2002) 213 CLR 1 (Ward (HC)) at [16], [25]; Commonwealth v Yarmirr [2001] HCA 56; (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.
28 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.
29 "[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.
30 "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."
31 The native title rights and interests possessed under such traditional laws and customs may be communal, group or individual in nature: s 223(1).
32 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] FCAFC 135; (2005) 145 FCR 442 ("Alyawarr (FC)"), De Rose v South Australia (No 1) [2003] FCAFC 286; (2003) 133 FCR 325 ("De Rose (No 1)") and De Rose v South Australia (No 2) [2005] FCAFC 110; (2005) 145 FCR 290 ("De Rose (No 2)").
33 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] HCA 23; (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.
34 In Alyawarr (FC) Wilcox, French and Weinberg JJ identified as one of the basic propositions from Mabo v Queensland (No 2) [1992] HCA 23; (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".
35 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.
36 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
37 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].
38 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.
39 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.
40 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).
41 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].
42 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.
43 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.
44 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).
45 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.
46 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.’
47 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.
48 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].
49 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.
50 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.
51 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.
52 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.
53 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
54 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.
55 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] FCA 1478; (1998) 159 ALR 483 (Ward (first instance)), was rejected by the High Court in Ward (HC) at [84], [92].
56 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.
57 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?
58 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)).
59 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.
60 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.
61 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.
62 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).
63 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."
64 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.
65 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?
66 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]).
67 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".
68 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.
69 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.
70 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...
71 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.
72 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.
73 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.
74 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.
75 The State drew attention to his Honour’s use in [181] of the term "community" rather than "society". "Society" is the word selected by the majority of the High Court in Yorta Yorta to emphasise the close relationship between the identification of the group and the identification of the laws and customs of that group (fn (94)). However, it is necessary again to stress that the critical issue is not the language used by his Honour but whether his Honour identified and applied the correct legal test to the facts properly found by him. If the reasons for judgment of the primary judge are read fairly in their entirety it can be seen that his Honour was conscious of those passages from the majority judgment in Yorta Yorta in which their Honours emphasised the inextricable link between a society (however described) and its laws and customs. In particular, his Honour was aware that:
[t]o speak of rights and interests possessed under an identified body of laws and customs is ... to speak of rights and interests that are the creatives of the laws and customs of a particular society that exists as a group which acknowledges and observes those laws and customs.(Yorta Yorta [2002] HCA 58; 214 CLR 422, [50])
76 It is apparent from the immediately preceding paragraphs that the primary judge did determine in Rubibi No 5 that native title rights and interests existed in the Yawuru claim area. The reference to those findings in [15] of his Honour’s reasons in Rubibi No 6 must be read as a reference to that finding, and that the precise nature and extent of those native title rights and interests remained to be determined. That understanding of his Honour’s remarks at [15] in Rubibi No 6 is also consistent with his identification of the issues he then proposed to address in that judgment. At [11] in Rubibi No 6, the remaining issues to be addressed were identified by his Honour. There is no reference to determining whether the Yawuru claimants had native title rights and interests in the Yawuru claim area. That does not, in our view, demonstrate (as the State contended) that his Honour did not address that issue at all but simply assumed affirmatively that such rights and interests existed. Quite the contrary. The detailed consideration of that issue in the judgment in Rubibi No 5 makes it clear that the issue had already been addressed and determined.
77
Both the State and the Commonwealth argued that, to have approached the fact-finding task in that sequence, necessarily involved error because the existence of a society or community holding native title rights and interests could not be resolved until the status of the Djugan had been addressed. But, as we have noted, his Honour correctly identified the task he was to undertake as explained in Yorta Yorta. He did not lose sight of that task. The sequence of a series of complex factual findings does not demonstrate to the contrary. That sequence of factual findings may well have been informed by his Honour’s expectation that the parties, by mediation, may have been able to resolve matters as to the precise extent and geographical scope of the native title which existed following the judgment in Rubibi No 5.
78 The consideration then given to the evidence concerning the Djugan, and how their position related to and affected the general findings made in Rubibi No 5, indicates that his Honour did carefully consider the evidence to identify, and then made findings about, the society or community which held native title rights and interests over or in relation to the Yawuru claim area. He has ultimately integrated the general findings made in Rubibi No 5 with those made in the later judgment. In our view, when his Honour’s reasons are considered overall, the contention that his Honour erroneously assumed the existence of native title rights and interests in the northern part of the Yawuru claim area should be rejected.
Did his Honour err in finding that the Djugan were a subset or subgroup of the Yawuru community?
79 As noted above (see [41]), the Yawuru are typically associated with the southern part of the claim area and the Djugan with the northern part of the claim area. The primary judge recognised that in determining the existence of the Yawuru’s native title rights in Rubibi No 5, the primary judge determined that the Djugan were a sub-set of the Yawuru so that the Yawuru claimants had native title rights over the whole of the Yawuru claim area, and as a corollary that the Djugan were absorbed into the Yawuru post-sovereignty. In the alternative, he found that there was valid succession of the native title rights and interests of the Djugan by the Yawuru according to their common traditional laws and customs.
80 The State makes two main contentions suggesting error in the reasoning of the primary judge. First, there is the argument that his Honour was wrong to focus on "communal native title" and that he should have more closely addressed the question of who held native title rights in the northern part of the Yawuru claim area. Secondly, the State contends that his Honour erred in focussing on the term "community" rather than "society" in relation to the Yawuru. It contended that his Honour’s approach was not consistent with Yorta Yorta. Consequently, it argues that there was no proper finding of a relevant society at the time of sovereignty, and that the primary judge was in error in finding there was a continuation of such a society to the present time.
81 There was a finding by the primary judge that the Djugan and Yawuru formed one "native title holding community ... now and at sovereignty" in Rubibi (No 6) at [81]-[84] and that the Djugan were a subset of the Yawuru.
82 Partly, the State’s contentions involve the proposition that the terms "society" and "community" are not interchangeable in the light of Yorta Yorta. We have already considered and rejected that proposition as indicating error on the part of the primary judge in finding that native title rights and interests exist in the claim area. That, however, does not mean that the State’s contentions on the matter now being considered should necessarily be rejected. It is necessary to address its contentions more carefully than that.
83 The State contends that there was no finding of a relevant society because there was no finding in conformity with the approach espoused in Yorta Yorta that the society be united by common observance of traditional laws and customs within the same normative system. The State argues that there was no finding that the Djugan’s northern and the Yawuru’s southern traditions were part of the same observed normative system, and that the finding of substantially similar laws and customs observed by each of those clans was insufficient to found the existence of their unified observance by the Yawuru claimants as required by Yorta Yorta. The Commonwealth supported those contentions. The primary judge’s "communal title" approach at [33] in Rubibi (No 6) was said wrongly to reason from the substantially similar customs observed between the two clans that the two clans constituted one group having native title rights over the claim area. The State says that this approach has been rejected in Ward (HC) at [84], [92] and was inconsistent with Yorta Yorta.
84 In our view, the reasons of the primary judge reveal that he did not make the errors which the submissions identify. We consider his Honour did find that there was a common normative system of the two clans over the claim area. Such a finding appears at [78]-[79] in Rubibi (No 6). His Honour there explains the basis upon which he found in Rubibi (No 5) as the normative system of the Yawuru as having been "prescribed by the Bugarrigarra", with the southern tradition as part of both the normative system and the traditional customs and laws observed and acknowledged in relation to the claim area. He explains that he considered the evidence relating to the northern tradition and the Djugan, and found a common source in the Bugarrigarra and the extensive commonalities and connections between the traditions of the Yawaru and the Djugan. In our view, his Honour concluded, as he did in Rubibi (No 5), that the Bugarrigarra and the many other commonalities in traditions (despite the differences) formed the content of one normative system. There does not appear to be any prescription in Yorta Yorta at [47]-[55] (the particular paragraphs addressed by the State) that all the same traditions and customs of each clan be observed and acknowledged by the two clans for them to operate under the one normative system. Yorta Yorta consistently refers to "a body of law and customs" rather than "the identical body and law and customs", for example at [49] and [39]. In turn, those observations are based on the words of ss 223 and 225 of the Act. The body of laws and customs under which native title rights and interests are possessed by a group of persons does not require that each member of the group has precisely the same knowledge of those laws and customs or that each member of the group fully comprehends in precisely the same way as each other member of the group how those laws and customs operate. The existence of native title rights and interests, held by a particular group of persons, is a question of fact to be determined upon the evidence in each case. We consider that is what the primary judge did in this case, and that the conclusion he reached was one available to him and which should not be disturbed on appeal.
85 The State also makes a suggestion that a common belief in the Bugarrigarra on its own cannot constitute a normative system of laws. That may be accepted. But the primary judge at [78]-[79] of Rubibi (No 6) clearly did not proceed on that basis. He looked more generally at the normative system which existed in the southern section of the Yawuru claim area and then found that the commonalities established by the evidence of the northern traditions also demonstrated that both the northern and southern sections of the claim area were held under the one normative system.
86
We also reject the criticism of his Honour’s general approach to the determination of native title held by the Yawuru group as a communal or group title. Each case must be decided on its own facts. Sometimes native title rights will be held by a group comprising a number of clans or estate or language groups. Sometime the rights will be held at the clan or estate group level. They may be held by a person or persons differently constituted. Each case will depend on the evidence and the particular circumstances. There is nothing in Yorta Yorta which prescriptively indicates that the use of the term "communal rights" to describe the rights held by a particular group of persons is not appropriate. In our view, his Honour has correctly addressed the identification of the group of persons holding native title rights over the claim area. We consider the submission seeks to elevate the language used by his Honour beyond what he clearly meant in an endeavour to show the approach was inconsistent with Yorta Yorta. See for instance in Rubibi (No 6) at [33] and [78]-[79]. But, properly understood, we consider his Honour’s approach accords with that decision. Indeed, his Honour has shown a careful analysis of it so as to properly follow it.
87 We also reject the contentions that the primary judge failed to consider, or erroneously considered, certain evidence with the result that, as the State argues, his Honour did not carefully consider all the evidence. In Yorta Yorta at [63] it was said that what is the most reliable evidence is for the judge to decide. A remark which is particularly apposite in litigation such as this which has been lengthy and in which the evidence has been often related to a number of issues. Such litigation as the present also attracts the observations that the "conclusions in question can be seen as made with the advantage of hearing the evidence in its entirety": see Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 ("Branir Pty Ltd (No 2)") at [24].
88 His Honour was mindful of the nature of the fact finding task and of the material relating to it following his conclusion in Rubibi (No 5). He said in Rubibi (No 6) that his task was essentially to determine whether the Djugan fell into the group of persons entitled to native title rights and interests. At [23] in Rubibi (No 6), he noted the difficulty he had in defining the Yawuru community on certain evidence, namely the early anthropological evidence. He therefore attributed particular weight to evidence given by Aboriginal elders prior to the commencement of the present claims. As to continuity, at the outset of the judgment in Rubibi (No 6), the primary judge said at [3] that the genealogy charts which were tendered in evidence were a basis for an "...inference of continuity of the Yawuru community that existed at the time of sovereignty through to the present time" because the charts evidenced ambilineal or cognatic descent which was consistent with traditional Yawuru laws and customs. That follows a finding made in Rubibi (No 5) at [366].
89 The path to his Honour’s conclusion that the Djugan continued as part of the Yawuru society is the commonalities found between the Djugan and the Yawuru clans. He found "extensive traditional connections and commonalities..." between them, including the common source of ‘Bugarrigarra’, were in existence at and since sovereignty: Rubibi (No 6) at [82]. The connections and commonalities of most significance included the substantial similarities between the languages spoken by Djugan and Yawuru at [53]-[65], and their skin section systems and their kinship at [50], in addition to the identical source of law and tradition in the Bugarrigara at [44]. The oral evidence, including that of Patrick Dodson, Paul Sampi, Joseph Roe, Frank Sebastian and Dr Palmer supported those findings.
90 In our opinion, the evidence relied on by the primary judge points firmly against the State’s contentions of there being separate societies and a lack of continuity. Although there was some evidence suggesting the Djugan and the Yawuru spoke separate language dialects, in Rubibi (No 6) at [64]-[65] his Honour found, as was open on all the evidence, that the Djugan and other Yawuru groups spoke the one dialect rather than completely distinct languages. He identified the written evidence of Hosokawa as "highly persuasive" at [55] and the oral evidence of senior elders at [54] as leading to his conclusion.
91 The State also referred to the evidence of Dr Palmer which, it is argued, identifies evidence of members of Djugan he spoke to stating they were "emphatically separate from Yawuru". Such answers were in relation to how members of the Djugan perceive themselves in relation to the Yawuru. The broader context is, however, in Palmer’s conclusion in his report that although they are a separate "tribe", the Djugan were members of the larger body of Rubibi people although a subset of it.
92 The State attempts to challenge the findings on these issues on an alternative basis, namely that there is a contradiction between the finding that the Djugan and Yawuru had cultural differences but their commonalities bound them as one, and the finding of the disintegration of the Djugan. Those remarks of his Honour are not necessarily contradictory, because his reference to disintegration does not, in its context, amount to a finding that the Djugan became extinct: see at [28], [33] in Rubibi (No 6). He recognised the Djugan were devastated by the colonisation of their land and by the early 1900’s were struggling to survive as an identifiable group, but then accepted recent ethnography and the oral history evidence given by some of the Yawuru claimants to indicate that the impact of those events did not mean there were then no Djugan people left. He was able to consider the commonalities amongst the Djugan and Yawuru to conclude they were one group. His approach seems to reflect the approach in Yorta Yorta in citing Mabo (No 2) which says "...a society must be sufficiently organised and cohesive to sustain beliefs and practices...and... to adapt, alter, modify or extend rights or duties..." (at [116] of Yorta Yorta).
93 The State also says that the finding of absorption post-sovereignty is inconsistent with the finding of the Djugan as a sub-set, and with the finding of disintegration. Predominantly the same contentions are made by the State on this alleged inconsistency, namely the alleged errors regarding communal title and the community/society distinction which we have already rejected. It is not therefore necessary to consider them further in detail. However, we add that we do not consider that his Honour’s approach to this issue fails to appreciate that the native title rights and interests he found to be held by the Yawuru, covering both the northern and southern sections of the claim area, are possessed under traditional laws and customs observed by that group back to the time of sovereignty, as explained in Yorta Yorta.
The alternative finding: succession of rights
94 The next issue arising on the State’s appeal concerning the existence of native title in the northern area relates to the alternative finding of the primary judge that, if the Djugan were not in fact a subset or subgroup of the Yawuru, whatever rights and interests they did have in the northern area had passed to the Yawuru community in accordance with its traditional laws and customs.
95 The joint judgment in Yorta Yorta provides some support for the recognition of native title rights and interests which have been transmitted from one tribe to another by a process of succession. Gleeson CJ, Gummow and Hayne JJ said at [43]-[44]
[43] ...Upon the Crown acquiring sovereignty, the normative or law-making system which then existed could not thereafter validly create new rights, duties or interests. Rights or interests in land created after sovereignty and which owed their origin and continued existence only to a normative system other than that of the new sovereign power, would not and will not be given effect by the legal order of the new sovereign.
[44] That is not to deny that the new legal order recognised then existing rights and interests in land. Nor is it to deny the efficacy of rules of transmission of rights and interests under traditional laws and traditional customs which existed at sovereignty, where those native title rights continue to be recognised by the legal order of the new sovereign. The rights and interests in land which the new sovereign order recognised included the rules of traditional law and custom which dealt with the transmission of those interests. Nor is it to say that account could never be taken of any alteration to, or development of, that traditional law and custom that occurred after sovereignty. Account may have to be taken of developments at least of a kind contemplated by that traditional law and custom.
96 The State claims that, having regard to the "inextricable link" between a native title holding society and its laws and customs and the restriction upon the creation of new rights after sovereignty (under Yorta Yorta), succession is not an acceptable basis for a finding of native title in circumstances where the purported succession of rights involves groups having different normative systems at sovereignty. Furthermore, the State claims that there was no evidence before the primary judge that principles of succession between tribes formed part of the northern and southern traditions.
97 The primary judge considered the anthropological and ethnographic evidence relevant to succession at [86]-[92] of his reasons for judgment in Rubibi (No 6). He did not find any substantial difference in the views of the three main anthropological witnesses regarding the principles that allow for succession under traditional law and custom. Professor Sansom gave evidence that, although he was not aware of any case where there had been principled succession to a different tribe’s country, "a south to north succession of peoples of the same tradition would be an easy one, theoretically, because it would be a transition within a tradition". Professor Sansom was also of the view that, in principle, there may be a succession between tribes of the same tradition "as with clans within a tribe, because, when people face unprecedented contingencies, they are likely to do something about it": at [88]. Mr O’Connor said that "traditional law and custom provided for succession by neighbouring or related groups in order to maintain the spirituality of the country". Dr Palmer also noted that Aboriginal succession is well documented in the literature and gave examples of the situations in which succession may occur – for example, where the groups shared a common culture or close ties, or shared similar principles embedded in law, teachings and beliefs or were adjacent and had close cultural links. It does not appear from his Honour’s summary of the evidence that any of the anthropologists expressed a view as to whether succession of rights from the Djugan to the Yawuru had been contemplated by their traditional laws and customs or had in fact occurred. However, after referring to a 1992 ethnographic survey of Madiros concerning land north of the Broome township which recorded the views of Yawuru elders that "succession to the Broome area was secured under general principles of Yawuru land tenure", his Honour concluded that the information provided by those elders was "consistent with the anthropological view that principles of succession formed part of the northern and southern traditions practiced in the Yawuru claim area": Rubibi (No 6) at [93]. His Honour then concluded (in the alternative to his primary finding that the Djugan were a subset or subgroup of the Yawuru community) that succession had in fact occurred, as set out in [45] above.
98 The Yawuru claimants disputed the premise upon which the State’s submissions on succession rest; that is, that the alternative finding of the primary judge involves an assumption that the Djugan were not in fact a subset or subgroup of the Yawuru community. They pointed out that his Honour’s express assumption at [85] of Rubibi (No 6) of the Djugan holding "discrete rights or interests in the northern area" does not necessarily imply the existence of rights sourced in a separate normative system. We do not accept that contention by the Yawuru claimants. Unless the primary judge’s alternative finding was based upon the premise that the Djugan people held native title rights and interests in the northern area under a separate normative system, there would have been no reason to consider making that alternative finding. Presumably the transfer or succession of any non-native title rights and interests to the Yawuru community could not have resulted in that community holding native title over the northern area in any event. Also, elsewhere in his reasons for judgment in Rubibi (No 5) his Honour posed the question whether the Djugan were "a native title holding community in their own right": at [10]. The Yawuru claimants’ attack on the premise underlying the State’s submission also fails to confront the issue of whether his Honour should have made any specific findings about whether the traditional laws and customs of the Yawuru community included principles of succession. The only passage in the reasons for judgment which may support such a finding appears to be a paragraph from the ethnographic survey referred to above, reproduced at [92] of Rubibi (No 6) which states that
The senior Yawuru consulted in the course of this research said that many, although not all, Djugan died out but as the Yawuru from the south were the same "tribe" (perhaps just a different clan estate, although this was not clear to the author) succession to the Broome area was secured under general principles of Yawuru land tenure.
99 Furthermore, we note that, without expressing a concluded view, the Full Court in Dale v Moses [2007] FCAFC 82 briefly considered the issue of transmission of native title from one society to another and said (at [120]):
The appellants' commenced with the argument that his Honour erred in applying the principles discussed in Yorta Yorta HC. The critical passage in the joint judgment of Gleeson CJ and Gummow and Hayne JJ, relied on by the appellants, was 443 – 444, at [44], in which their Honours spoke of the "efficacy of rules of transmission of rights and interests". However this discussion by the members of the High Court is probably directed to intergenerational transmission of rights and interests under traditional laws within the society possessing rights and interests in the land under traditional laws and customs at the time of sovereignty. The observations of the members of the High Court do not establish a principle of the type apparently relied on by the appellants, namely that where the traditional laws and customs of one society provide for the transmission of rights and interests in land recognised by those laws and customs, then transmission to another society can be effected and the acquisition of the transferred rights in interest can ultimately be recognised as rights and interests of the transferee society for the purposes of the NTA. The primary judge was probably correct in rejecting this contention. However it is not an issue which it is necessary for us to explore as the legal proposition, if correct, would only be engaged and operate in the appellants favour if certain matters of fact were established. In the present case, the required factual foundation is lacking in several important respects.
100 In circumstances where the primary contention of the Yawuru claimants (and the actual finding of the primary judge) was that succession to rights and interests did not arise because there was always only one society, it is perhaps unsurprising that there appears to be little evidence on the point and the primary judge’s reasoning is brief.
101 The only directly supportive evidence is that from the ethnographic survey of Madiros. The author in that survey says that he had not investigated "the mechanisms that resulted in a transfer of title" even though the information provided was that a transfer had occurred.
102 The indirectly supporting anthropological evidence of Professor Sansom and Dr Palmer was also addressed by the primary judge in Rubibi (No 5). His Honour’s discussion of their evidence at [266] indicates that he particularly noted and accepted Professor Sansom’s views about the response of traditional indigenous law to adverse contingencies, and concluded that succession was an adaptation by the traditional laws and customs "clearly established on the evidence". The interim report of Professor Sansom which comprised part of his evidence, and which was referred to by his Honour in that part of his reasons, specifically addresses the Yawuru circumstances and apparently accepts that the hypothetical possibility may have applied to the Yawuru claimants. Professor Sansom, pointed out that succession would in any such circumstances be a long process. In his oral evidence, Professor Sansom said also that "... if the Yawuru succeeded to the Djugan country and the Djugan followed the Northern Tradition this would be imperialism because the country would have to change its spiritual nature." His Honour then asked whether, if the Yawuru and the Djugan were the same tribes sharing tradition (as his Honour ultimately found to be the case), Professor Sansom’s views would be different. On that hypothesis, Professor Sansom said that the people of the south would slip easily into the north as they would already know the songs and sites and would be going into "brother country".
103 On that fairly scanty evidence, the question remains whether his Honour’s ultimate finding on this issue should be sustained. Strictly speaking, as we have rejected the attack on the primary basis for upholding the orders under appeal on this aspect, it is not necessary to answer that question. However, it is appropriate to make some observations upon it.
104 The findings of his Honour as to the closeness of the traditional laws and customs of the Yawuru in the southern part of the claim area with those of the Djugan in its northern part, the slight positive support for the finding provided by the ethnographical study, the acceptance by the three anthropological experts of the theoretical possibility of such succession, and the events which have happened inform the answer to that question. There are, in a practical sense, only two possibilities: that the Yawuru have "imperialistically" taken over the Djugan area, or that the relationship between the two claims is such that the Yawuru have succeeded to the northern part of the Yawuru claim area over time as the Djugan have reduced in numbers in accordance with the common traditional laws and customs of the two clans. We incline to the view that his Honour’s conclusion on the question was available to him on that material.
The descent system of the Yawuru community
105 The second issue on the State’s appeal is whether the primary judge was correct to find that there existed at sovereignty a principle of choice such as to allow for an evolution of traditional laws and customs to take account of cognatic or ambilineal descent. The State’s contentions in this respect challenge the primary judge’s finding of native title over the entire Yawuru claim area, including the southern area.
106 The primary judge dealt with the anthropological evidence about membership of the Yawuru community in Rubibi (No 5) at [292]-[297]. He recalled that there was disagreement over this issue in Rubibi (No 1), in which the State’s anthropologist (Dr Kolig) maintained that the community was based on a clan model with primary rights in land conferred by patrilineal descent, whereas the applicants’ anthropologist rejected the applicability of a patrilineal clan-based model to Yawuru country. His Honour found it unnecessary to resolve the issue in Rubibi (No 1). He said, at [142], that:
[E]ven 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.
107 In the present case, Dr Palmer (the Yawuru claimants’ anthropological witness) said an individual may acquire rights in country from the father or mother, or "by virtue of the origin of a person’s spirit conception". He said that being Yawuru is a matter of descent, in either the male or female line or a combination of both. In his summary of Dr Palmer’s evidence the primary judge said (at Rubibi (No 5), [286]):
Palmer noted in his main report that traditional anthropologists like Radcliffe-Brown considered the descent group to be patrilineal...Palmer’s view however, was that the fact of exogamy made the flexible model of cognatic descent more likely. He stated that descent was not arbitrary because a person’s identification was constrained by traditional considerations such as residence, ritual and community recognition.
108 Professor Sansom, the anthropologist called by the State, said that Aboriginal society was traditionally patrilineal but in recent times has tended towards being cognatic or ambilineal. He said traditional law and custom makes provision for "unexpected contingencies", the principles of membership of land-owning groups often being supplemented by "contingency provisions" which allow suitably qualified persons to become members of the group. In relation to the Yawuru community, Professor Sansom’s view was that:
[C]ognatic reckoning of kinship together with the conceptualisation of Yawuru lands as constituting a single "language country" are, in my view, related developments that are products of an (unconscious) evolutionary process whereby a new and flexible system grew out of classic landholding arrangements based on the division of country either into "horde countries" or into patriclan estates. In that evolutionary process, the contingency provisions of the classic Yawuru system were joined together and combined with the normal rules for recruitment of persons to groups and the assertion of connection with land to yield:[i] an ambilineal (or cognatic) system of kinship and
[ii] a system of land tenure in which the internal boundaries dividing sub-divisions of land within a "language country" have tended to fall away (often to the degree that sub-divisions are wholly eliminated and become ..."defunct").
(Rubibi (No 5) [2005] FCA 1025, [290].)
109 In a later report Professor Sansom expanded upon the "evolutionary process" referred to in the passage above. He spoke of "processes of the evolution of customs observed and traditions acknowledged" and stated that "the evolutionary processes rely on the further elaboration of possibilities that (as provisions for contingencies) were always inherent in traditional laws and customs as these were enunciated and put in to practice in classic times": see Rubibi (No 5) at [290] (emphasis added).
110 The primary judge accepted Professor Sansom’s evidence, considering it a "persuasive explanation of how any patrifiliation descent principle has evolved under traditional law and custom to cognatic or ambilineal principle". It is implicit in his Honour’s acceptance of that evidence that he did not consider that any evolution to principles of cognatic or ambilineal descent resulted in the cessation of acknowledgment and observance of traditional laws and customs of the Yawuru community. Indeed, his Honour expressly stated so: Rubibi (No 5) at [366]. Nor did his Honour consider the anthropological evidence to be inconsistent; he also accepted Dr Palmer’s contention that such evolution does not result in an arbitrary principle "because other traditional considerations, such as residence, ritual and community recognition, still have a role."
111 His Honour returned to the issue of evolution of traditional laws and
customs later in his reasons in Rubibi (No 5), in the context of
consideration of the Walman Yawuru claimants’ contention that native title
rights and interests in the Yawuru
claim area were reflected in a clan estate
model and not held as communal native title. Professor Sansom’s view,
which his
Honour did not fully accept, was that at sovereignty Yawuru society
followed the patriclan estate model. In this respect Professor
Sansom said
that:
1. ... classic Yawuru patterns of landholding were probably based on the definition of "horde countries" or patriclan estates.
...
3. Ambilineal (or cognatic) reckoning of kinship together with the conceptualisation of Yawuru lands as constituting a single "language country" are, in my view, related developments that are products of an (unconscious) evolutionary process whereby a new and flexible system grew out of classic landholding arrangements based on the division of country into patriclan estates...
4. Evolution proceeded in a manner that I recognise as a more widespread process whereby the contingency provisions of a classic system are joined together with the normal rules for recruitment of persons to groups and assertion of connection with land to yield:
[i] an ambilineal (or cognatic) system of kinship and
[ii] a system of land tenure in which the internal boundaries dividing sub-divisions of land within a "language country" tend to fall away (often to the degree that sub-divisions are wholly eliminated and become [as Hosakowa says] "defunct").[Cross ref with [108] quote not identical]
5. Processes of evolution referred to in (3) and (4) above may or may not have also become germane to developments among "Karadieri" people associated with the coastal region South of Broome.
6. However, there is a general trend towards the emergence of cognatic systems of kinship in all regions of Aboriginal Australia. With increasing urbanisation, this trend accelerates.
7. It is to be expected that the kinship of those Karadieri people whose traditional country lies to the South of Broome but who are now largely urban dwellers, will "go cognatic".
8. Processes of evolution referred to in (4), (5) and (6) above, are processes of the evolution of customs observed and traditions acknowledged by people who, through the generations, have maintained connection with the "language countries" of their forebears. Further, (as explained in the text of this report) the evolutionary processes rely on the further elaboration of possibilities that (as provisions for contingencies) were always inherent in traditional laws and customs as these were enunciated and put into practise in classic times.
112 While his Honour did not accept that a patriclan estate model was applicable in the Yawuru claim area at sovereignty, he did otherwise accept Sansom’s evolutionary model, discussed in the quoted passages above. That conclusion was considered to be significant because, as his Honour said in Rubibi (No 5) at [363]
[I]t confirms the view I have formed that the present cognatic or ambilineal structure and definition of the Yawuru community is in accordance with the traditional laws and customs acknowledged and observed by the Yawuru community. It also confirms that, whatever the precise structure and traditional definition of the Yawuru people at sovereignty might have been, a change from a community similar to a patrifileal clan-based community at or before sovereignty to a cognatic or ambilineal based community is a change of a kind that was contemplated under the ‘contingency provisions’ of those traditional laws and customs.
113 In Rubibi (No 6) the primary judge considered several further issues regarding the criteria for membership of the Yawuru community, including whether it was necessary, for a person of non-Yawuru descent to be incorporated into the Yawuru community, for that person to self-identify as Yawuru. In that context his Honour referred to the evidence of Ms Barrett, an anthropologist, that Yawuru people "have always had a choice to follow their mother or their father". His Honour said the examples given in the evidence of the exercise of choice of following either parent were not seriously challenged: Rubibi (No 6) at [105]; and then said, at [106],
The traditional laws and customs that evolved in order to take into account cognatic or ambilineal descent must be taken to have included a principle of choice of the kind discussed by Barrett. Without such a principle, it would be difficult to accept that a person’s traditional and spiritual connection to the country of that person’s parent could be established. Such a principle would also be necessary to enable identification of the ‘traditional’ community claiming to have maintained its connection to its country and to hold native title for that country.
114 On this aspect of its appeal the State again contends that his Honour’s focus on the "communal native title" of the Yawuru community led him into error in his conclusions about the traditional laws and customs of that community. It is said that Yorta Yorta required his Honour to determine the content of the laws and customs relating to the descent system followed by the Yawuru "society" at sovereignty; and that the correct answer to this inquiry is that the relevant descent system was a patrilineal clan-based system. The State then contends that there was no basis for a finding that a change from that community to an ambilineal based community was in accordance with traditional laws and customs; or that such a change was contemplated under the contingency provisions of the traditional laws and customs. His Honour is also said to have incorrectly assumed the existence of a principle of choice at sovereignty.
115 The State then contends that his Honour should not have found 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 form, rather than the creation of a new community. It is said that his reliance upon Professor Sansom’s "evolutionary model" overlooked Professor Sansom’s point that the system which grew out of the classic landholding arrangements was a new system. In support of that submission the State relies upon Professor Sansom’s oral evidence in relation to his report quoted at [97] above. In cross-examination Professor Sansom said that paragraph 8 of that report should not be understood as indicating that the evolutionary process he observed among the Yawuru was "traditional".
116 The State further contends that to the extent to which the primary judge relied upon the "contingency provisions" of the traditional laws and customs identified by Professor Sansom to support his conclusion as to principles of descent, such reliance was misplaced. It claims that the contingency of ambilineal descent was available under a traditional patriclan society only in order to cope with a small percentage of the population. Professor Sansom said in his oral evidence
[T]raditional systems had contingency provisions...to deal with crises...which were usually experienced piecemeal...And you could say, alright, there was something like 10 per cent variance, and the contingency provisions would cope with that, or it might have been 15 per cent variance. So what you’ve got are provisions that are invoked now and again. What we have here is systemic transformation. And there is a difference.
Thus, it is said that the application of such a contingency provision to the whole of the Yawuru society would have created a new and different society in which the contingency became the norm.
117 The Yawuru claimants criticised the "silent premise" of the State’s submissions. They contended that the State’s contention impermissibly elevates the concept of a "patrilineal clan-based system" to a normative system under which no other form of descent principle has any role or significance, overlooking the fact that other forms of descent may be relevant to membership of the society, or of a subgroup of the society, or in relation to the allocation of rights in country as between members of the society. Thus in relation to this aspect of the State’s challenge regarding descent principles, the Yawuru claimants submit that even if one assumes that the Yawuru community at sovereignty involved a patrilineal clan-based system, that characteristic would reflect only one aspect of the broader system of which each clan formed part. The Yawuru claimants then contend that membership of the community at sovereignty was, as it is today, on the basis of ambilineal or cognatic descent from ancestral members.
118 The Commonwealth made no submissions on this ground of the State’s appeal.
119 In considering the effect, for the purposes of the NTA, of any change to the content of traditional laws and customs, the observations made in the joint judgment in Yorta Yorta at [82]-[83] are apposite:
It is, however, important to notice that demonstrating the content of pre-sovereignty traditional laws and customs may be especially difficult in cases, like this, where it is recognised that the laws or customs now said to be acknowledged and observed are laws and customs that have been adapted in response to the impact of European settlement. In such cases, difficult questions of fact and degree may emerge, not only in assessing what, if any, significance should be attached to the fact of change or adaptation but also in deciding what it was that was changed or adapted. It is not possible to offer any single bright line test for deciding what inferences may be drawn or when they may be drawn, any more than it is possible to offer such a test for deciding what changes or adaptations are significant. Indeed, so far as the second of those issues is concerned, it would be wrong to attempt to reformulate the statutory language when it is the words of the definition to which effect must be given.
What is clear, however, is that demonstrating some change to, or adaptation of, traditional law or custom or some interruption of enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim. Yet both change, and interruption in exercise, may, in a particular case, take on considerable significance in deciding the issues presented by an application for determination of native title. The relevant criterion to be applied in deciding the significance of change to, or adaptation of, traditional law or custom is readily stated (though its application to particular facts may well be difficult). The key question is whether the law and custom can still be seen to be traditional law and traditional custom. Is the change or adaptation of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples when that expression is understood in the sense earlier identified?
120 The State may have blurred the distinction that seems to have been drawn by the primary judge between traditional laws and customs which determine membership of a society, and traditional laws and customs which determine the distribution of rights and interests within that society. The State said in its submissions on 12 December 2006:
Ambilineal descent is not a traditional law: and note that his Honour did not find it to be so in the present case. The issue identified by his Honour was not whether ambilineal or cognatic descent was traditional law and custom, but rather whether it was ‘in accordance with traditional law and custom’. Thus, in his Honour’s view, ambilineal descent was an acceptable adaptation of a traditional law at sovereignty, the content of which his Honour never precisely identified.
It is not clear what is meant by the first two sentences of that passage.
121 If that passage is intended to convey that his Honour did not consider whether the adaptation to an ambilineal or cognatic descent system meant that that law and custom is no longer a traditional law and custom, we do not agree with the contention. In our view, in the passages referred to above from Rubibi (No 5) and Rubibi (No 6), his Honour carefully considered whether the existence of an ambilineal or cognatic descent system reflected a change from the traditional laws and customs at sovereignty, so that the rights and interests now asserted by the Yawuru people are no longer possessed under the traditional laws acknowledged and the traditional customs observed by the Yawuru group that existed at sovereignty. He decided that it did not reflect such a change. He made findings that the rights and interests now claimed through an ambilineal descent system are possessed by the Yawuru people under traditional laws and customs. And he identified evidence which amply supported his findings.
122 We see no error in his Honour’s approach.
Adoption/incorporation into the Yawuru community
123 The final broad issue before this Court regarding the native title rights and interests held by the primary judge to be possessed by the Yawuru community (subject of course to questions of extinguishment, considered below) arises under the Walman Yawuru cross-appeal, concerning the identification of the native title holders in the determination of native title made by his Honour on 28 April 2006 and attached as Annexure B to these reasons for judgment.
124 The description of the native title holders in Schedule 1 to the determination includes in para (c) the following persons:
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.
125 His Honour included para (c) because he was satisfied that under the traditional laws acknowledged and traditional customs observed by members of the Yawuru community, there was a principle of incorporation into the Yawuru community of adult non-Yawuru persons having high cultural knowledge and responsibilities: Rubibi (No 7) at [18]. This is referred to in the Walman Yawuru cross-appeal as the "adult adoption incorporation clause".
126 The evidence as to adoption and incorporation into the Yawuru community was considered in Rubibi (No 5). At [298]-[301] his Honour referred to the evidence of Yawuru "law bosses" Joseph "Nipper" Roe, Patrick Dodson and Frank Sebastian (Gajai) regarding adoption under traditional laws and customs of certain persons who, for example, "carried out responsibilities", were "involved in the ceremonies, and in defence of the sacred places" or were "steeped in the law". His Honour did not reach a conclusion in relation to that evidence in Rubibi (No 5) but commented that the nature and extent of the operation of such principles raised a "serious question". In Rubibi (No 6) the primary judge said he accepted that membership of the Yawuru community may arise by adoption or incorporation at [110]; and he repeated that conclusion in Rubibi (No 7) at [18], noting that the principle would only be activated rarely and "can only operate where the person in question is closely associated with the area, has the requisite knowledge and responsibilities, has self-identified as a member of the community and is generally accepted by other members of the community as a Yawuru person."
127 The Walman Yawuru claimants argued against the inclusion of this clause in the determination. They submitted on their cross-appeal to this Court that the grounds for its inclusion were not borne out on the evidence; and that the Walman Yawuru claimants were prejudiced because they were not given an opportunity to test the principle during the original proceedings, its inclusion being the result of a late amendment to the proposed determination of native title provided by the Yawuru claimants. There was, however, in evidence before this Court a document filed in the proceedings below setting out the submissions of the Walman Yawuru as to the incorporation of non-Yawuru persons into the community, and as to prejudice caused by the proposed amendments to the determination sought.
128 The Walman Yawuru people also said that the clause would, over time, have the effect of "diminishing" those people such as the Walman Yawuru, who have special attachments and special responsibilities, and thereby cultural authority, over their traditional lands.
129 The Yawuru claimants seek to have this aspect of the Walman Yawuru cross-appeal dismissed on the basis that the Walman Yawuru claimants have failed to identify any error by the primary judge. The State also accepted that his Honour did not err by including the adult adoption incorporation clause in the determination of native title; although it contended that a more principled approach to the issue may have been through acceptance of the notion that connection to land and waters can be established by having "responsibilities" to land under traditional laws and customs. The Commonwealth made no submissions on the issue.
130 In essence, the contention of the Walman Yawuru is simply that there is no, or insufficient, evidence to support the finding. They accept, as was the finding in De Rose (No 1) at [200] and in Alywarr (FC) at [114], that there is no necessary requirement for a biological link between all native title claimants and the holders of native title rights and interests at sovereignty.
131 The primary judge relied largely upon the evidence of Tommy Edgar, Lulu and Susie Gilbert, three senior law bosses of the southern tradition. The Walman Yawuru say that evidence did not really support a finding that, without a biological link, a person could be "seen as or identified as Yawuru people". They submitted that the evidence of Patrick Dodson and Dr Palmer, on the other hand, shows that incorporation is by a process of negotiation rather than traditional law and custom.
132 The primary judge relied on evidence beyond that of the three named persons. In Rubibi (No 7) at [17] he also referred to his reasons in Rubibi (No 5) at [291] and [348]. Those reasons expose that his Honour also relied upon the anthropological evidence of Dr Palmer and Professor Sansom on this topic. In particular, he accepted Dr Palmer’s observation that the evolution from a patrifiliation descent principle to a cognatic or ambilineal principle is "... not arbitrary because other traditional considerations, such as residence, ritual and community recognition, still have a role", and Professor Sansom’s evidence that identification of a person with a traditional tribal community involved, inter alia, descent, community acceptance and spiritual connection, and that community acceptance was "very important".
133 In Rubibi (No 6) at [105]-[106] his Honour expressly accepted a principle of incorporation and self-identification:
I am prepared to accept the evidence adduced by the Yawuru claimants that a person who is not of Yawuru descent, but who has assumed the role undertaken by Lulu, may be regarded by community members as having been incorporated into the Yawuru community. However, there is the question of whether such a person would be accepted as a member of the native title holding community under the community’s traditional laws and customs if he or she has not self-identified as a member of that community.
There was evidence that self-identification or choice was regarded as a criterion for membership of the Yawuru community. In her evidence in relation to the Yawuru claimants’ case on cognatic or ambilineal descent, Kimal Barrett, an anthropologist, stated that Yawuru people "have always had [the] choice to follow their mother or their father. And even going right back, if you go back to the earliest people, you can see people choosing one way or the other, just in this country". The examples given in the evidence of a choice of following either parent, or of taking country from either parent, were not seriously challenged. While the issue of choice was not explored in detail in the evidence, I am satisfied that it is unlikely that a person of mixed parentage who has chosen or elected not to be a Yawuru person or not to be a member of the Yawuru community, would be accepted as part of the Yawuru community that had a traditional connection with the Yawuru country.
134 And in Rubibi (No 5) at [289] his Honour found that:
... Sansom noted that membership of a clan country may be ceded to a "non-agnate" (someone without descendants from that clan) on a number of grounds including: the location of "conception dreaming" (rai); birthplace or site of initiation in the clan territory; by formal adoption; by coming to knowledge of a country or ceremonies for the country and long residence there; by virtue of some kin connection; the birth of one’s child or location of one’s childrens’ "conception dreaming place" in country; and by burial of one’s ancestors in a country. Sansom named some other factors and stated that his list was probably not exhaustive. He observed that generally in the classic systems of Australia, the major principles for the recruitment of persons to the membership of land-owning groups are supplemented by a set of "contingency provisions" which permit a suitably qualified person to be admitted to membership of the group.
135 His Honour carefully analysed the evidence. At [298] in Rubibi (No 5) his Honour referred to further evidence supporting that of Paddy Roe (Lulu) about adoption and incorporation in the Yawuru community. He referred to the evidence of Joseph Roe, Patrick Dodson, Frank Sebastian (Gajai), Tommy Edgar and Susie Gilbert. Lulu was a Nygina man born in Yawuru country and had his "rai" located in Yawuru country. It was by virtue of his "carrying out responsibilities steeped in the law" to protect the northern and southern traditions that he came to be regarded as an accepted Yawuru member.
136 We have reviewed the evidence referred to by the Walman Yawuru. In our view, it is not inconsistent with his Honour’s conclusion.
137 Patrick Dodson’s evidence, where he discusses the incorporation of Lulu, Susie Gilbert and Tommy Edgar, consistently maintains that those three law bosses were incorporated as part of the Yawuru community because of the role they played in relation to the law, even though they maintained recognition of their ancestry, for example Lulu as Nygina and Tommy Edgar as Karajarri, and that identification in both communities or societies may be maintained.
138 Dr Palmer’s evidence included reference to a meeting of senior law men in 2001 during which they confirmed that Lulu had been incorporated as a Yawuru law man and member. There is no indication that this event supports the assertion of the Walman Yawuru that "membership by incorporation ... [is] a process of negotiation and assertion in the traditional religious sphere that is by nature secretive and exclusive rather than a traditional law and custom".
139 In our judgment, there was evidence upon which his Honour could make the challenged finding, and we do not think the evidence referred to by the Walman Yawuru requires a different finding. The relative infrequency of activation of membership of the Yawuru does not tend to indicate that membership in that way is not according to traditional laws and customs. It is likely to be very much more common that membership will occur through descent.
140 There is one further feature of this issue to which we should refer. In their submissions in reply, the Walman Yawuru suggest that the clause of the determination providing for membership of the Yawuru by incorporation does not define the actual persons who, by incorporation, may become members of the Yawuru by reason of high cultural knowledge and responsibilities.
141 That degree of precision in a determination is not imposed by s 225 of the NTA: see e.g. Daniel v Western Australia [2004] FCA 849; (2004) 138 FCR 254 ("Daniel") at [5] and [48]; Kokatha People v State of South Australia [2007] FCA 1057 at [16]. The determination accurately reflects the findings based on the evidence and satisfies the requirements of s 225 of the NTA.
Native title rights of the Walman Yawuru clan
Lay evidence, anthropological evidence and findings regarding Walman Yawuru country
142 The Walman Yawuru claim was made by Margaret Robinson, Edward Roe and Peter Matsumoto on behalf of the Walman Yawuru clan, which was defined as the Aboriginal people who are descendants of Ngobing Babere and Chimbere Sitocay (other than one descendant, Michael Corpus, who was said to have been banned from the Walman Yawuru clan for serious breaches of their customary laws). Ngobing Babere and Chimbere Sitocay were both also named as apical ancestors of the Yawuru claimants. Eight Walman Yawuru witnesses gave evidence before the primary judge. The primary source of their knowledge about traditional laws and customs was Maria Emma Ngobing ("Mimi"), who died in 1953 and was the daughter of Ngobing Babere and Chimbere Sitocay. The primary judge set out the evidence of those witnesses in his reasons for judgment in Rubibi (No 5) and commented that much of their evidence in relation to those claimed laws and customs was lacking in detail and based on assertion. The following paragraph contains a summary only of the key findings his Honour made on the Walman Yawuru claim.
143 The primary judge described the Walman Yawuru claim as one for group native title rights and interests in respect of the Walman Yawuru claim area. He characterised the claim as one for "clan native title" rather than "communal native title", and as incompatible with the Yawuru claim for communal native title in the Yawuru claim area. The primary difference between the Yawuru claim and the Walman Yawuru claim was that the Walman Yawuru witnesses said that non-clan members must seek permission from a Yawuru clan member to be on that clan’s land; so that other Aboriginal people were required permission to visit, fish or hunt in Walman Yawuru country. In other words, the Walman Yawuru claimants claimed to hold exclusive rights in the Walman Yawuru claim area. The primary judge preferred the evidence of the Yawuru witnesses in that respect. He also rejected certain other aspects of the Walman Yawuru evidence. His Honour found that the Walman Yawuru witnesses had little knowledge of traditional Yawuru or Walman Yawuru laws and customs and that they could not distinguish between "the law" followed by Yawuru people and "the law" followed by Walman Yawuru people. A comparison of the evidence given by the Walman Yawuru witnesses as discussed in Rubibi (No 1) and their evidence at the ultimate hearing revealed numerous inconsistencies in relation to the status of those witnesses as members of the Yawuru community. For example, his Honour referred to Jack Roe’s evidence in Rubibi (No 1) that Mimi had told him that "this country is all Yawuru, the whole lot, right through" and that his grandmother told him he belonged to the Yawuru tribe; and compared it with his evidence during the current proceedings that his family group calls itself "Walman Yawuru or Walmanjano" and that his country, "our clan country", "belongs to Walman". The primary judge noted that although Edward Roe expressed a strong affiliation with Walman Yawuru country, his statement handed up in the Rubibi (No 1) hearing indicated that he also identified as a Yawuru person living on Yawuru country and that, prior to the commencement of the current disputed native title claim, he similarly regarded Mimi and her parents as Yawuru people living on Yawuru country. His Honour also rejected Edward Roe’s evidence that in the 1950s Tommy Edgar, a senior Yawuru law man requested, and was granted, permission from Mimi to use the law ground at Kunin to practice "the law". Those findings were made in Rubibi (No 5) at [201]-[206].
144 His Honour said that it was clear that prior to the dispute between the Yawuru claimants and the Walman Yawuru claimants, the Walman Yawuru clan members regarded themselves as Yawuru people whose country was Yawuru country (generally corresponding to the Yawuru claim area). Any pursuit of a claim of sole ownership of the Walman Yawuru claim area only arose, his Honour found, as a result of that dispute: Rubibi (No 5) at [244].
145 His Honour’s review of the anthropological evidence confirmed his rejection of the proposition that, under the traditional laws and customs acknowledged and observed in the Yawuru claim area (including the Walman Yawuru claim area), native title rights and interests are clan-based. The primary judge considered the evidence of the three main anthropological witnesses in relation to "the law", rai and other totemic associations, language and boundaries, membership of the Yawuru community, and clan estates. The evidence regarding clan estates in the Yawuru claim area, an issue closely related to systems of descent and membership of the Yawuru community, was strongly contested both in Rubibi (No 1) and in the ultimate hearing. The competing views of Professor Sansom and Dr Palmer are set out above. Mr O’Connor, the anthropologist called by the Walman Yawuru claimants, concluded that Walman Yawuru is a clan and that the community who spoke the Yawuru dialects was not a land-owning community because land was owned by individual clans. He said that membership of the Walman Yawuru clan is via matrilineal descent. His Honour did not accept that evidence.
146 Following his consideration of the anthropological evidence, the primary judge concluded that, while it was "an acceptable, and even a reasonable, hypothesis" that the laws and customs presently acknowledged and observed by the Yawuru community have evolved from traditional laws and customs that provided for landholding to be akin to that of a patriclan estate model at or prior to sovereignty, the more likely hypothesis was that at sovereignty "clan members had special attachments to, and responsibilities for, the areas with which the clan members were traditionally associated": Rubibi (No 5) at [356]. His Honour then said in Rubibi (No 5) at [356]-[357]:
While it is likely that those attachments and responsibilities would have generally led to Yawuru persons, who were non-clan members, informing clan members of their presence in such areas as a matter of courtesy and respect, I regard it as unlikely that there was a clear rule of trespass or a requirement for permission in respect of Yawuru persons who are not clan members ...
Accordingly, for the above reasons, I do not accept that the exclusive native title rights and interests claimed by the Walman Yawuru claimants were held by clan members at sovereignty. It does not follow from that conclusion that the Walman Yawuru clan members do not have any native title rights and interests in their clan areas in their capacity as clan members. Rather, the conclusion has the consequence that any such rights and interests are not the exclusive rights and interests they claim to possess because I am not satisfied that such rights and interests were possessed under the relevant traditional laws and customs at sovereignty.
147 Later in his reasons for judgment in Rubibi (No 5), the primary judge referred to his rejection of a clan-based title in the Yawuru claim area and his rejection of the patrilineal clan estate model propounded by Mr O’Connor and Professor Sansom, and said the following in relation to the Walman Yawuru clan (at [372]):
Of course, it does not necessarily follow from those findings that clan members do not have some non-exclusive native title rights and interests in their capacity as clan members. In that regard, I have accepted that it was likely that at sovereignty members of a clan, and others, had a special attachment to, and special responsibilities for, areas or sites with which the clan was associated (see [356]). A problem confronting the Walman Yawuru claim is that the evidence has not enabled me to be satisfied that at sovereignty those attachments and responsibilities resulted in those persons having native title ‘rights or interests’ in any specific site or area in their capacity as clan members, rather than in their capacity as members of the Yawuru community. More specifically, and having regard to the definition of native title ‘rights’ and ‘interests’, I am not satisfied that the evidence establishes that, by the traditional laws and customs of the Yawuru community, those attachments or responsibilities at sovereignty were such as to constitute a ‘right’ in respect of the Walman Yawuru claim area (or part thereof) or an ‘interest’, as defined in s 253 of the NTA, held by any clan members in that area (or part thereof). The main difficulty in that regard is that, although it is possible that clan members might have held such a right or interest at sovereignty in parts of the Yawuru claim area, the evidence of the Walman Yawuru witnesses and the anthropological evidence upon which the Walman Yawuru claimants have relied has not enabled me to determine the content of any traditional laws and customs which, on the balance of probabilities, might have given rise to rights and interests being possessed by Walman Yawuru clan members in the Walman Yawuru claim area (or part thereof) at sovereignty.
148 The findings set out in the preceding two paragraphs form the basis of the issues presently arising on the Walman Yawuru cross-appeal.
The alleged errors of the primary judge
149 On their cross appeal, the Walman Yawuru claimants challenged the finding of the primary judge that the Walman Yawuru clan was a subgroup of the Yawuru community and that the members of that clan did not hold any native title rights and interests in their capacity as clan members. They claim that their "special attachments to and responsibilities for clan country" constitute native title rights and interests for the purposes of ss 223(1) and 253 of the NTA, and a "connection" to that country for the purposes of s 223(1)(b); and that their clan had a normative system of beliefs and rules which ascribed their relationship to, and connected them to, clan country. The Walman Yawuru claimants said that the primary judge misunderstood the nature of their claim to native title in the Walman Yawuru claim area. In their submissions on the cross appeal they described their claim as a "competing communal native title claim", not a group claim. They contended on appeal that although their own native title rights and interests in the Walman Yawuru claim area were communally held, there was no "umbrella communal system" that gave other clans rights or interests in each other’s lands.
150 An important aspect of the Walman Yawuru cross appeal was that, although at first instance they claimed to hold exclusive native title rights and interests in the Walman Yawuru claim area, the focus of their argument shifted on appeal so that they now primarily claim that their special attachments to, and responsibilities for, their clan country should be recognised as constituting non-exclusive rights in that area. It will be necessary to examine the precise case put on appeal in more detail below.
151 The particular errors said to have been made by the primary judge in relation to the Walman Yawuru claim are difficult to identify. The main contentions appear to be that his Honour made "a mistake of fact arising in unfairness" in finding that the Walman Yawuru were a sub-group of the Yawuru community; that he failed to appreciate the "marked differences" between the evidence of the Yawuru witnesses and the Walman Yawuru witnesses regarding laws and customs relating to land; and that he failed properly to assess the evidence of the Walman Yawuru witnesses, particularly regarding the existence of a rule of trespass in the Walman Yawuru claim area.
152 There is one other aspect of the Walman Yawuru submissions that should be dealt with before embarking upon a detailed consideration of their case on appeal. We note that their Further Amended Notice of Cross Appeal and their written submissions in support of that cross appeal state that there was an (implicit) finding by the primary judge in Rubibi (No 5) at [357] and [372] that clan members had some non-exclusive native title rights and interests in the Yawuru claim area in their capacity as clan members; and more particularly that the Walman Yawuru clan members hold some non-exclusive native title rights and interests in their clan areas in their capacity as clan members.
153 In our view, his Honour made no such finding. The submission is not reflected in the reasons of his Honour in Rubibi (No 5) at [356], [372], [374] and [375]. In any event, we think the Court could treat that contention as having been abandoned. Senior counsel for the Walman Yawuru claimants made no mention of it during the hearing; and it is inconsistent with the primary focus of the Walman Yawuru cross appeal and the balance of their written submissions.
Did the primary judge misunderstand the basis of the Walman Yawuru claim?
154 The primary judge is said to have wrongly identified the Walman Yawuru clan as a sub-set of the Yawuru community because he regarded the claim of the Walman Yawuru claimants as one for group rights, and not for communal rights. The Walman Yawuru claimants rely, in relation to their contention that their claim was a communal claim and not a group claim, upon their Amended Points of Claim of 7 November 2002, which stated that "[t]he Walman Yawuru people are a community comprised of individuals who identify, and are identified by others, as Walman Yawuru. Rights and interests in Walman Yawuru traditional lands and waters are held communally by the Walman Yawuru community of whom the Walman Yawuru claimants and the above named Walman Yawuru elders and others are members"; and that "the community is a traditional grouping of people and as such, membership is subject to the traditional laws and customs of the Walman Yawuru people." They said their claim at trial was that the Walman Yawuru people were a community in themselves, and they had communal rights in Walman country; whereas the primary judge approached the Walman Yawuru claim from an incorrect premise which assumed all that the Walman Yawuru claimants were asserting were "intra-mural" rights within the Yawuru community.
155 The Full Court in De Rose (No 2) considered at [38] the distinction between a claim to communal native title and a claim to group or individual native title rights and interests. The Court there said the critical point appears to be that, where a claim is made for communal native title, the relevant body of laws and customs is that of the very community making the claim; whereas group and individual rights and interests derive from a body of laws and customs of a wider community, on whose behalf native title rights are not necessarily claimed. Clearly, in either case the Court’s task in assessing the claim is to identify the traditional laws acknowledged and the traditional customs observed by the persons claiming native title. That task necessarily precedes the identification of any native title rights and interests, be they communal rights, group rights or individual rights, possessed under those traditional laws and customs. It follows, therefore, that if the primary judge conducted the necessary inquiry in relation to the Walman Yawuru people, it will not necessarily be a flaw in his analysis that he characterised their claim as a group claim and not a communal claim. Counsel for the Walman Yawuru claimants presumably had this in mind when he acknowledged that he could not point directly to the alleged wrong premise leading to a wrong conclusion; although he did maintain that his Honour’s approach may have "[clouded] the accuracy of his Honour’s appreciation of the claim and the evidence presented".
156 Our consideration of his Honour’s reasons, particularly to the passages to which we have referred, indicates that he did not misunderstand the nature of the native title rights and interests claimed by the Walman Yawuru people. We think he well understood it, and addressed it. Indeed, as we have just noted, in oral submissions senior counsel for the Walman Yawuru claimants acknowledged that his Honour’s reasons do not contain any words in which can be seen the error which the argument contended that he committed.
The claim of non-exclusive native title rights in Walman Yawuru clan country
157 On appeal, the Walman Yawuru claimants primarily claimed non-exclusive rights to have access to the Walman Yawuru claim area, to care for the area and to protect the area in a traditional way. This is not the case that was put at first instance. The contentions of the Walman Yawuru claimants are said to have been adapted in light of the findings of the primary judge (in particular, his Honour’s finding that there was no rule of trespass in relation to clan country).
158 The Walman Yawuru claimants said that special responsibilities or attachments of the kind recognised by the primary judge to reside in their clan were precisely what Deane and Gaudron JJ had in mind when their Honours said in relation to recognition of pre-existing native title interests by the common law in Mabo (No 2) at 86:
What the common law required was that the interest under the local law and custom involve an established entitlement of an identified community, group or (rarely) individual to the occupation or use of particular land and that that entitlement to occupation or use be of sufficient significance to establish a locally recognized special relationship between the particular community, group or individual and that land.
159 The Walman Yawuru claimants also sought to draw upon the primary judge’s finding that their attachments and responsibilities would have generally led to Yawuru persons, who were non-clan members, informing clan members of their presence in such areas "as a matter of courtesy and respect": an expression used in Rubibi (No 5) at [356]. That such courtesy and respect may constitute a native title right or interest was said to have been recognised by Cooper J in The Lardil Peoples v State of Queensland [2004] FCA 298, where at [137] his Honour observed in relation to the relevant Aboriginal claimants that:
[B]ecause of the complexity and range of the mechanisms by which one could acquire rights to enter and engage in activities based on patriclan relationships or skin relations, there was a greater fluidity of movement between Countries and places where activities were engaged in, than occurred in the other applicant groups. That of itself gave rise to a range of conduct engaged in by Gangalidda people which Dr Trigger described as appropriate or necessary ‘etiquette’. I accept his evidence that behavioural conduct which is described as ‘etiquette’ may mask, but does not deny, the validity of the core requirement that their must exist a right or rights in respect of Country upon which the rules as to ‘etiquette’ were built.
160 Both on this contention and on their alternative contention discussed below, the Walman Yawuru claimants also sought to rely on s 211(3) of the NTA in support of their submission that special attachments and responsibilities held by clan members are capable of recognition as native title rights and interests under that Act. Section 211 of the NTA permits, in certain situations, native title holders to carry on a "class of activity" in the pursuit of the exercise or enjoyment of native title rights in circumstances where the carrying on of that class of activity would otherwise be prohibited or restricted by a Commonwealth, State or Territory law. Subsection (3) defines a "class of activity" as including "a cultural or spiritual activity". It is clear that s 211 assumes the existence of native title rights and interests in relation to land so it does not add anything to the definition of native title in s 223. It is not apparent how the definition of "class of activity" in s 211(3) could possibly assist the Walman Yawuru submission in any event, and we do not consider that it does so.
161 The consequence for the wider Yawuru community of the principal Walman Yawuru submission is far from clear. Counsel for the Walman Yawuru claimants accepted that the broader Yawuru community has some rights in the Walman Yawuru claim area. He denied that the necessary consequence of upholding the Walman Yawuru case would be that the claim of the Yawuru community should wholly fail. It was submitted that this Court should recognise that the Walman Yawuru clan have a duty to protect the clan country (a corollary of their "special responsibilities" in relation to that land), which would enable the clan members to prevent other Yawuru people as well as non-Yawuru people from disturbing or destroying that country, but would not prevent others from going on to it. In relation to his Honour’s finding that native title rights and interests are held in the Yawuru claim area by the Yawuru community, counsel said this:
We say it's wrong, but, having regard to the finding of his Honour, we say that it can now be determined that, because of his finding of special attachment and responsibilities, that the Walman clan can, in accordance with section 225, be determined to hold native title rights and interests as a clan, within their clan area.
...
[G]iven his Honour's decision which we don't seek to overturn completely, we say, as it were, that it is within the Court's power under section 225, to carve out native title rights and interests which the Walman people have.
...
Well, I've sought to rationalise that in this way, without overturning the whole of his Honour's decision, but submitting that given his finding that there was a Yawuru community, given his finding that within that Yawuru community there were likely to have been clans at sovereignty or - that is, "people akin to a patriclan" - they were his words, and given that he found that those people akin to a patriclan had special attachments to and responsibilities for their clan land, that the Court can determine that those people, namely like the Walman people, can be determined to have native title rights in respect of that special attachment and responsibilities.
Now if the other people who have been found to be members of the Yawuru community don't choose to have those rights determined for them in regard to their country to which they are especially attached or have responsibility for, then that is their business. But for the Walman people, they seek to have their native title rights, as I put it, carved out and sitting alongside the rights declared in favour of the Yawuru community.
162 The Walman Yawuru claimants were directed to identify, in their Further Amended Notice of Cross Appeal, what amendments should be made to the determination of native title made by the primary judge to reflect the respective rights of the Walman Yawuru clan and the Yawuru community in relation to the determination area if the Walman Yawuru cross appeal were to succeed. They did not do so. The redrawn notice of appeal seeks an order "setting aside so much of the Rubibi Native Title Determination No. 2 as identified in the Grounds"; and an order determining that the Walman Yawuru clan hold (specified) non-exclusive native title rights and interests in two areas, "Walman Traditional Country" and "Minyirr Country". The co-ordinates of those two areas are provided. It is entirely unclear, from that redrawn notice, what rights are said to be held by the broader Yawuru community in the Walman Yawuru claim area and the Minyirr claim area. One can only infer that no amendments are sought to the balance of the determination, which states in Order 4 that the nature and extent of the native title rights and interests held by the Yawuru community (including the Walman Yawuru clan) in those areas is (subject to extinguishment and except in relation to flowing and subterranean water) "the right of possession and occupation as against the whole world". Indeed, the supplementary submission of the Walman Yawuru claimants, filed after the hearing of their cross appeal, suggested that non-exclusive native title rights and interests should be recognised as being held by the Walman Yawuru claimants "notwithstanding the co-existing determination of native title rights and interests of the Yawuru community made by the Primary Judge".
163 The native title rights and interests claimed by the Walman Yawuru claimants in the Walman Yawuru claim area (or "Walman Traditional Country") are described in the notice as:
(1) The right to carry out traditional activities associated with the Walman Yawuru in their traditional lands.
(2) The right to protect the traditional country of the Walman Yawuru clan including places of significance, in particular in the Mangalagun area, to prevent their destruction, disturbance and interference.
(3) The right to access places and areas of importance in Walman Yawuru traditional lands, in particular the Mangalagun area, and to maintain and protect them from damage, disturbance and interference.
(4) The right to use the traditional lands and waters of the Walman Yawuru clan, in particular the Mangalagun area, for ceremonial and religious purposes, and the transmission of traditional knowledge.
(5) The right to live on their traditional lands, in particular the Mangalagun area, for the purpose of conducting traditional activities.
(6) The right to use and access the traditional lands and waters of the Walman Yawuru clan, in particular the Mangalagun area, for hunting, fishing and the gathering of traditional resources for food and other domestic purposes, according to traditional laws and customs.
(7) The right to make decisions about access to and the use and enjoyment of the traditional lands and waters of the Walman Yawuru clan and the traditional resources thereof, for the purposes of conducting such activities.
A different set of rights was claimed in relation to the Minyirr claim area (see below).
164 The claimed rights as so expressed, particularly in (2), (3) and (7) above, are quite obviously inconsistent with any right of the broader Yawuru community to exclusive possession and occupation of the area. They could not possibly "sit alongside the rights declared in favour of the Yawuru community", as counsel for the Walman Yawuru claimants suggested. And in addition to the inconsistencies apparent on the face of the rights claimed, there is the added difficulty of reconciling the present claim of the Walman Yawuru with the reasoning underpinning the recognition of Yawuru communal rights in the Walman Yawuru claim area by the primary judge. Although they did not seek to overturn the whole of the decision at first instance, the Walman Yawuru claimants maintained on appeal that their claimed native title rights were possessed under an independent normative system (that is, independent from any normative system of the broader Yawuru community). However the contention may have been expressed, it cannot be regarded as anything other than a fundamental attack on the primary judge’s conclusion that native title rights and interests are communally held throughout the Yawuru claim area under a body of traditional laws and customs comprising an ambilineal or cognatic system of social organisation which is not concerned with defining the membership of any clan of that community and which does not give rise to rights and interests held by members of the community in their capacity as clan members: Rubibi (No 5) at [374] and [372]. That is not to say that there could never be two complimentary normative systems within the one claim area. But that possibility was rejected by the primary judge, as reflected in the determination. The Walman Yawuru claimants have not shown that the findings made inconsistent with their contention were erroneous.
165 There is, in any event, a more fundamental finding which the Walman Yawuru claimants must confront. They must demonstrate, in order to succeed on their cross appeal, that the primary judge was wrong in concluding that the Walman Yawuru clan members did not constitute, at sovereignty or presently, a body of persons united in and by their acknowledgment and observance of a body of laws and customs. The impugned conclusion is found at [372] of the reasons for judgment in Rubibi (No 5) where his Honour said
... the evidence of the Walman Yawuru witnesses and the anthropological evidence upon which the Walman Yawuru claimants have relied has not enabled me to determine the content of any traditional laws and customs which, on the balance of probabilities, might have given rise to rights and interests being possessed by Walman Yawuru clan members in the Walman Yawuru claim area (or part thereof) at sovereignty.
166 In their submissions on appeal the Walman Yawuru relied upon the primary judge’s findings that, at sovereignty, it is likely that the Yawuru clan members had particular attachments to, and responsibilities for, areas with which the clan was traditionally or historically associated; and that the evidence justified a general finding of a special attachment of the Walman Yawuru witnesses to the Mangalagun (Crab Creek) area: see Rubibi (No 5) at [362] and [322]. They also sought to rely upon a "finding" that the Yawuru community was at sovereignty constituted by clans known as Walman, Minyirr, Leregon, Julbayi, Langandjano and Idarr. While his Honour did state in Rubibi (No 6) at [15] that the clans constituting the Yawuru community "were generally regarded as including [those] clans", strictly speaking it is stating it too highly to describe that comment as a finding made by the primary judge.
167 The traditional laws and customs identified by the Walman Yawuru claimants on their cross appeal which were said to constitute their independent normative system included placing authority with clan elders (evidenced, for example, by the expulsion of Michael Corpus from the clan group); observance of permission protocols; respecting spirit of ancestors in clan country; belief in spirit people connected to country; evidence of knowledge and use of a clan totemic site (Gurlibil Rock); hunting, fishing and gathering knowledge specific to clan country; traditional food preparation, midwifery and childcare; use of local estate as a prime source of sustenance; maintenance and protection of clan burial grounds, fish traps and camping areas; and ceremonial participation through the southern tradition of "law".
168 It was said that the primary judge inappropriately used the evidence of the Yawuru witnesses as a "benchmark" in assessing the evidence of the Walman Yawuru witnesses; and that he should have considered their evidence in the light of their communal native title claim, not as falling within any "umbrella communal system" of the Yawuru community.
169
The Walman Yawuru claimants also complained about his Honour’s finding that their evidence was "beset by the problem of wishful reconstruction, misconception of current practice as traditional or an idealisation of the past" (Rubibi (No 5) at [246]). This was said to be an erroneous view "because the evidence was derived from the traditional laws and customs of the Walman Yawuru people". That contention is merely assertive and fails to identify any error on the part of the primary judge. The Walman Yawuru claimants said that the adverse findings of the primary judge in relation to the credibility of their witnesses "obscured marked differences" in the laws and customs relating to land and waters held by the Yawuru and Walman Yawuru witnesses. Those "marked differences" were identified in the written submissions as the Walman Yawuru evidence of the right to permission, the right to say no and the right to control access to and use of one’s clan country by non-clan members; the rights of senior Yawuru law women to speak for country (particularly Walman Yawuru country); and the Walman Yawuru view of rai as a spiritual connection between the Walman Yawuru and their clan country, described by Dr Palmer as a "new idea" because the Yawuru witnesses associated "conception rai" with a particular place or site: (Rubibi (No 5) at [238]).
170 It is convenient to deal with this first aspect of the Walman Yawuru cross appeal together with the second ground pressed, which comprised an alternative contention concerning exclusive rights in the Walman Yawuru claim area.
The alternative contention: a rule of trespass and permission
171 The second ground of the Walman Yawuru cross appeal contends that his Honour should have found and determined that there is a rule of trespass and permission underpinning the requirement of courtesy and respect from Yawuru non-clan members in acknowledgment of the special attachments and responsibilities held by clan members towards clan country; and that that "rule" gave rise to a native title right and interest held by the Walman Yawuru clan in respect of their traditional land and waters. This contention is clearly inconsistent with the principal case presented by the Walman Yawuru claimants at the hearing of the appeal and cross appeals, which was that the native title rights of the Walman Yawuru clan were non-exclusive in nature. However, an additional submission filed by the Walman Yawuru claimants after the hearing of the cross appeal explained that the claim to exclusive native title rights and interests was an alternative claim, pressed in the event that the Yawuru claimants should be held on appeal not to have native title rights or interests over Walman Yawuru traditional lands and waters.
172 The specific finding of the primary judge challenged on this aspect of the Walman Yawuru cross appeal is found in Rubibi (No 5) at [356] and [375], where his Honour held:
The more likely hypothesis is that at sovereignty clan members had special attachments to, and responsibilities for, the areas with which the clan members were traditionally associated. While it is likely that those attachments and responsibilities would have generally led to Yawuru persons, who were non-clan members, informing clan members of their presence in such areas as a matter of courtesy and respect, I regard it as unlikely that there was a clear rule of trespass or a requirement for permission in respect of Yawuru persons who are not clan members.
...
Insofar as clan members may have any special attachment to a specific area or site that has been, or is continuing to be, acknowledged by them or other Yawuru persons, that acknowledgement is a courtesy or respect, but the attachment or responsibility is not such as to constitute or give rise to a native title right or interest, as defined in ss 223(1) and 253 of the NTA.
Consideration of the claim to non-exclusive, or alternatively exclusive, rights
173 The primary judge considered the evidence of the witnesses called by the Yawuru claimants (including Patrick Dodson, Frank Sebastian (Gajai), Joseph "Nipper" Roe, Alberta Bin Omar, Mary Tarran, Joseph Roe, Thomas Edgar, Elsie Edgar, Paul Sampi and Peter Francis) regarding permission to access country at [160]-[173] of his reasons for judgment in Rubibi (No 5). His Honour concluded at [172]-[173], putting to one side the issue of a clan or people based permission, that there was a traditional requirement for permission to be sought by strangers to country, which still occurs when it is reasonable to insist upon its observance having regard to the modern reality of freedom of movement. At [182]-[248] the primary judge set out the evidence of each of the Walman Yawuru witnesses (Margaret Robinson, Edward Roe, Jack Roe, Alfred Corpus, Elsta Foy, Peter "Nugget" Matsumoto, Philip "Pinky" Corpus and Richard Corpus). He recorded evidence from most of those witnesses to the effect that it was necessary to obtain permission from the Walman Yawuru clan to enter their clan lands. He concluded at [244], however, that the Walman Yawuru witnesses had elevated their "attachment" to clan area to a claim that that area is Walman Yawuru country that cannot be visited by Yawuru people without permission, such elevation being a result of "an idealisation of the present to justify the competing Walman Yawuru native title claim". His Honour was not satisfied that the evidence established the existence of any such law or custom.
174 Hence, the short answer to those alternative contentions on behalf of the Walmun Yawuru is that their claims were understood by the primary judge, and rejected by him. They were rejected because, on the findings of fact made by his Honour in the light of the evidence, the necessary factual foundation for either of them was not made out. That, in turn, depended upon his Honour’s assessment of the reliability of competing witnesses for the Yawuru and the Walman Yawuru. There is no reason to disturb those findings.
175 We note that both the State’s and the Yawuru claimants’ submissions in response to the Walman Yawuru cross appeal complained of the failure of the Walman Yawuru claimants to identify the relevant errors of the primary judge that were said to have been made in relation to the Walman Yawuru claim. The Yawuru claimants referred to Branir Pty Ltd (No 2), where Allsop J, with whom Drummond and Mansfield JJ agreed, made certain observations regarding the role of an appeal court. In particular, Allsop J stated that it is not appropriate to treat the appeal as though it were a new trial on the evidence, constrained merely by the unassailable factual findings: at [30]. Similarly in Yorta Yorta, the majority said that the "assessment of what is the most reliable evidence" about what were the traditional laws and customs of the people of an area at the time of European settlement is "quintessentially a matter for the primary judge who heard the evidence that was given": at [63].
176 It is difficult to identify precisely what the primary judge is said by the Walman Yawuru claimants to have done wrong; or why the Full Court is being asked to review so many pages of transcript from the hearing at first instance. Nevertheless, after consideration of the material referred to, we have the view that the conclusions of the primary judge were readily available to him, and his reasons for preferring certain evidence over other evidence is cogent and persuasive.
177
There is a further aspect of the Walman Yawuru submission to which it is necessary to refer.
178 Section 225(c) of the NTA provides that a determination of native title must set out, in addition to the native title holders and the nature of the rights held by them, "the nature and extent of any other interests in relation to the determination area". In the event that they are unsuccessful on the first two grounds of their cross appeal, the Walman Yawuru claimants seek recognition of their special attachments and responsibilities toward their clan country as an "other interest" in any determination of native title made (or upheld, as it would be) in relation to the Yawuru claim area.
179 An "interest", in relation to land or waters, is defined in s 253 of the NTA as:
(a) 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) a restriction on the use of the land or waters, whether or not annexed to other land or waters.
180 The definition of "interest" in s 253 is of wide import, extending to "any other right ... in connection with ... the land or waters" in question: see Ward (HC) at [387].
181 The Walman Yawuru claimants, and the State, referred to the remarks of Black CJ in Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1 at 8, where his Honour said that "there is no indication that, for example, a person who has a special, well established non-proprietary connection with land or waters which is of significance to that person is not to be regarded as having interests that may be affected by a determination." However, his Honour was there concerned with the meaning of the word "interests" in what was then s 68(2) of the NTA, which provided for joinder of a party to a native title application if the person’s interests may be affected by a determination in relation to the application and he expressed the view (at 6) that the definition of "interest" in s 253 does not apply in that context: see also per Lockhart J at 18 and per Merkel J at 40.
182 In any event, the State submitted that even if the definition of "interest" in s 253 is wide enough to encompass the special attachment of the Walman Yawuru clan, their interest in that regard is in their capacity as native title holders within the Yawuru community, not as persons with "other interests" affected by the determination.
183 At [372] of Rubibi (No 5) his Honour found that, at sovereignty, it was likely that members of the Walman Yawuru had special attachments to and special responsibilities for areas with which both the Yawuru and Walman Yawuru were traditionally associated. At [233] of Rubibi No 5, the Mangalagun area was specifically named as an area with which the Walman Yawuru had a special attachment. But the primary judge concluded at [375] of Rubibi (No 5) that the special attachments and responsibilities of the Walman Yawuru were a courtesy and respect, and did not constitute an interest under the recognised traditional laws and customs of the Yawuru, nor did they satisfy ss 223(1) and 253 of the NTA. Accordingly, they did not constitute interests nor native title rights. A similar view was expressed in Rubibi No 6 at [9].
184 At [13] of Rubibi (No 7), therefore, his Honour concluded that the only rights and interests that the Walman Yawuru possess in relation to the claim area are interests or rights "... held in any capacity they may have as members of the Yawuru community" as detailed in the determination. The special attachments and responsibilities were not considered to fall under the s 253 definition of "interest" and were accordingly not included in the determination under s 225(c) of the NTA.
185 Both the Yawuru claimants and the State sought to uphold the conclusion of the primary judge.
186 The key obstacle to the Walman Yawuru succeeding on appeal on this point is the findings of the primary judge. Unless those findings are to be disturbed on appeal (and we have rejected the argument that they should be), his Honour’s findings as to the nature of the Walman Yawuru’s relationship to parts of the claim area precludes the contention from succeeding. That relationship, on the findings, did not amount to an interest in relation to the determination area. It is, therefore, not necessary to explore the relationship between s 225(b) and (c), that is whether the concept of "other interests" in s 225(c) can accommodate a claimed interest of a clan of a native title claim group which has established native title rights and interests (as expressed in the determination) over the claim area, and especially where the recognition of that other interest may derogate from the native title rights and interests recognised. There is much to be said for the view that s 225(c) does not refer to particular intra-mural "interests" of members of the native title claim group, but to third party interests which must be accommodated in parallel with the native title rights and interests: see e.g. Ward (HC); and Sampi v Western Australia (No 2) [2005] FCA 1567.
187 The Further Amended Notice of Cross Appeal also claims that the primary judge should have found and determined that the Walman Yawuru clan succeeded to, and possessed native title rights and interests in, the traditional lands of the Minyirr people.
188 The basis of the Walman Yawuru claimants’ claim to "traditional custodianship" of the Minyirr traditional lands was quoted by the primary judge in Rubibi (No 5) at [9] as follows:
... in the early years of the twentieth century, the Minyirr people died out. As immediate neighbours, the Walman Yawuru people had, in accordance with traditional law and custom acknowledged by both groups of people, shared knowledge of rituals associated with the land and waters, sacred aspects of the land and means of maintaining the spirituality of the land and water. With the passing of the Minyirr people, their immediate neighbours the Walman Yawuru undertook, in accordance with traditional law and custom, to maintain the spirituality of the traditional lands of the Minyirr people, by continuing the practice of rituals, by visiting and cleaning rai spirit sites and other sacred places and by continuing to harvest the fruits and other products of the land and waters in accordance with traditional law and custom. The Walman Yawuru people continue to maintain and protect the spirituality of the land and waters of their former neighbours, the Minyirr people to the present day and to instruct their children in these matters. That instruction, however, includes teaching that the lands in questions are the lands and waters of the Minyirr people and they can never become the tradition lands and waters of the Walman Yawuru people.
189 His Honour then said that, as the Minyirr was also a clan of the Yawuru community, and as the Minyirr claim area was within the Yawuru claim area, the Minyirr claim would fail if native title in the Yawuru claim area is found to be a communal native title, rather than a clan native title: at [9]. His Honour determined that the Walman Yawuru clan did not have group native title rights and interests in the areas in which they claimed native title or in Minyirr: Rubibi (No 6) at [15]. That approach was in accordance with the observation of the Full Court in De Rose (No 2) that "[i]f 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": at [31].
190 As noted above, on their cross appeal the Walman Yawuru claimants said their claim was for communal, not group, rights in their traditional lands; and claimed to acknowledge and observe an independent body of traditional laws and customs in relation to their claim area. However, in their "Skeleton Submission" the Walman Yawuru claimants referred to the primary judge’s finding that the traditional laws and customs of the Yawuru community allowed for succession between tribes of the same tradition (see Rubibi (No 6) at [93]) and asserted that the Walman Yawuru claimants, as a clan, should be held to have, by succession on the principles the primary judge accepted, non-exclusive (custodial) native title rights and interests in relation to Minyirr country "both of a usufructuary kind and to entitle the Walman Yawuru to speak for and protect Minyirr country".
191 As we have rejected the premise upon which this claim is based, namely that the native title rights and interests in the claim area are clan-based rather than communal, it is not necessary to consider the contention further.
CONCLUSION ON NATIVE TITLE ISSUES
192 For the above reasons we consider that the appeals of the State and of the Walman Yawuru should be dismissed so far as they concern native title issues.
CONSIDERATION OF EXTINGUISHMENT ISSUES
Reserves 2551 and 15019 – Appeal Ground 5
193 Ground 5 of the Further Amended Notice of Appeal of the State challenges the finding of the primary judge that native title had not been extinguished over the entirety of two adjoining reserves, Reserve 2551 and Reserve 15019. The State contended that his Honour should have found that native title had been extinguished over the entirety of the two reserves by the assertion by the Crown of a right to use each reserve for its reserved purpose of "Gaol" and "Police" respectively.
194 It was common ground at first instance that native title rights and interests had been extinguished in respect of the areas of the reserves on which the Broome gaol and a police station were constructed. However these public works stand on only part of the area of the respective reserves.
195 The primary judge concluded that construction of the gaol and police station extinguished native title rights and interests in the areas on which the gaol and police station were constructed and in areas adjacent thereto that were reasonably necessary for, or incidental to, the operation and enjoyment of the gaol and police station. However, his Honour concluded that the constructions did not necessarily extinguish native title rights and interests in respect of the remaining areas of the respective reserves (Rubibi (No 7) at [59]).
196 After noting that the State placed reliance on s 251D of the NTA, the primary judge found, after a visit to the site of the gaol and police station, that in each case the adjacent vacant land was not reasonably necessary for, or incidental to, the operation and enjoyment of the gaol or the police station as the case may be. His Honour concluded at [145]-[147] that native title in respect of that land has not been extinguished.
197 His Honour founded the above conclusion on the majority judgment in Ward (HC) especially at [214]-[234]. It is sufficient here to note the following passages from those paragraphs:
It is important to recall that the ultimate question is whether, by the steps that were taken, the Crown created in others, or asserted, rights in relation to the land that were inconsistent with native title rights and interests over the land. It was submitted that the features of the statutory regulation of public reserves which we have mentioned indicated that reservation, even without vesting, amounted to dedication to the purpose specified in the instrument of reservation in the sense, so it was submitted, that reservation prevented the Crown from applying the land to some other purpose and created some right in members of the public generally or a section of the public.
...
... by designating land as a reserve for a public purpose, even a purpose as broadly described as "public utility", the executive, acting pursuant to legislative authority, decided the use or uses to which the land could be put. The executive thus exercised the power that was asserted at settlement by saying how the land could be used. The exercise of that power was inconsistent with any continued exercise of power by native title holders to decide how the land could or could not be used. The executive had taken to itself and asserted (pursuant to the authority conferred in that regard by statute) the right to say how the land could be used. This step was not, however, necessarily inconsistent with the native title holders continuing to use the land in whatever way they had, according to traditional laws and customs, been entitled to use it before its reservation.
...
... we consider that looking to the use that has actually been made of land distracts attention from the central inquiry which is an inquiry about rights created in others or asserted by the executive, not the way in which they may have been exercised at any time ...
198 The State contended that by reserving land for the purposes of a gaol and police station, and then asserting rights to use the reserved areas for their reserved purposes by, inter alia, constructing a gaol and police station respectively on part of the reserved land, the State has asserted rights over the whole of the reserved land that are inconsistent with the native title rights and interests of the native title holders. The State criticised as erroneous the approach adopted by his Honour of looking at the use that had been made of the reserved lands as opposed to inquiring as to the right asserted by the executive.
199 We do not regard the above criticism as well-founded. As mentioned above, his Honour noted that the State placed reliance on s 251D of the NTA. That section provides:
In this Act, a reference to land or waters on which a public work is constructed, established or situated includes a reference to any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work.
200 Consideration of the use that has in fact been made of the reserved lands is not, in our view, irrelevant to an inquiry as to whether any part of those lands was land "the use of which is or was necessary for, or incidental to" the operation of the gaol or prison. Nor was such consideration conclusive of that inquiry.
201 However, before this Court the State understandably placed no reliance on s 251D of the NTA. The Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) ("the TVA") refers to "land or waters on which a public work concerned ... was or is situated" (see, for example, s 7(1)). The meaning of that phrase in the TVA is to be determined by reference to s 251D of the NTA (s 4 of the TVA). However, Division 2 of Part 2 of the TVA, which is concerned with the validation of "past acts", has no application in respect of the creation of the reserves or the construction of the buildings thereon as it is not suggested that those acts would otherwise be invalid (s 228(2)(h) of the NTA). For this reason the TVA itself has no application in respect of the creation of the reserves or the construction of the buildings thereon. In this circumstance s 251D of the NTA has no relevant operation.
202 Reserve 2551 and Reserve 15019 were each created pursuant to legislative provisions that authorised the Governor to reserve to her Majesty, her heirs and successors such lands as may be required for sites for, in effect, public buildings including police stations and prisons (see reg 32 of the Land Regulations 1894 (WA) and s 39 of the Land Act 1898 (WA) ("Land Act 1898")). No vesting orders were made in respect of the reserves, nor were the reserves placed under the control of any board, person or other authority. They were not leased or granted in fee simple.
203 By creating the reserves the Governor decided the uses to which the land constituting the reserves could be put. The creation of the reserves was thus inconsistent with the continuance of any native title right to determine the use or uses to which the land could be put. However, we agree with his Honour that the mere creation of the reserves was not necessarily inconsistent with the native title holders continuing to use the land in whatever way they had, according to traditional laws and customs, been entitled to use the land before its reservation (Ward (HC) at [21]).
204 But the Crown did more than merely create the reserves. Thereafter the Crown put at least part of the reserved land to the uses for which it had been reserved; that is, it constructed the gaol and the police station on the sites respectively reserved for those purposes. It is not contentious that the construction of the gaol and police station respectively extinguished native title rights and interests in the land on which the public works were constructed and on areas adjacent thereto that were reasonably necessary for, or incidental to, the operation of the gaol and the police station. That is, it is accepted that by constructing the gaol and the police station the Crown asserted additional rights over the areas on which the buildings were constructed, and the areas adjacent thereto that were reasonably necessary for or incidental to the operation of the gaol and the police station. These additional rights were inconsistent with all native title rights and interests. However, whether the Crown thereby, as the State contends, asserted these additional rights over the whole of the reserves is to be determined as a question of fact.
205 It is not necessary here to determine whether it is to be assumed, in the absence of rebutting evidence, that the creation of a public work on land reserved as a site for such work involves an assertion of rights over the whole of the land so reserved (cf Daniel at [709]). In this case the primary judge considered that there was evidence inconsistent with any such assumption. His Honour visited the two reserves and, like this Court, had the benefit of aerial photographs of the reserves and of documents which detail construction work carried out on them.
206 The aerial photographs of Reserve 15019 shows the reserve to be generally square in shape. It faces roads on the northern, eastern and western sides. On the eastern frontage a smallish area, on which a house appears to have been constructed, is excised from the otherwise square shape of the reserve. The police station is shown to be constructed on the north-eastern section of the reserve down as far as the northern boundary of the excised portion. Together with its immediately adjacent grounds, drive-way etc, the police station covers rather less than half of the total reserve. The remainder of the reserve (ie principally the western side of the reserve) is shown as vacant, and apparently untended and unfenced, land.
207 The aerial photograph of Reserve 2551 shows gaol buildings covering what appears to be more than half of the reserve. However, a significant area of vacant land outside the perimeter of the gaol itself can be seen with the largest such area, apparently constituted by sand hills, being at the north western corner of the reserve. None of the drawings detailing construction work carried out on this reserve shows or suggests that a perimeter fence has ever been constructed around the entire reserve although various fenced areas within the reserve are shown on the aerial photograph and on drawings apparently prepared in anticipation of construction in 1906, 1931 and 1950.
208
These two aerial photographs and the construction drawings help explain his Honour’s conclusions that the vacant land forming part of the reserves but not being used for the purposes of the gaol or the police station was not reasonably necessary for, or incidental to, the operation or enjoyment of the gaol and the police station respectively. In our view, his Honour’s conclusions are to be understood as conclusions that the Crown has not, by the mere construction and use of the gaol and police station, asserted rights over that vacant land that are inconsistent with all native title rights and interests. Rather, we understand his Honour to have found that the steps taken by the Crown fell short of an assertion of exclusive rights in respect of those areas of the reserves. So understood we agree with his Honour’s conclusions. In our view, native title has been extinguished in respect of the land on which the gaol and the police station have respectively been constructed, the immediate curtilage of the works constituting the gaol and the police station, and areas adjacent thereto enclosed by walls or fencing. Otherwise, in our view, native title in respect of the reserves has not been extinguished. The appropriate dividing line is, we agree, as shown on the marked aerial photographs provided to this Court by counsel for the Rubibi People.
The Broome town site – Appeal Ground 8
209 Ground 8 of the Further Amended Notice of Appeal complains that the primary judge erred in law in finding that s 47B of the NTA was capable of being applied to the proclaimed area of the Broome town site. The State contends that s 47B has no application in that area because it was subject to a proclamation under which the whole or a part of the land or waters in the area is to be used for public purposes, or for a particular purpose within the meaning of s 47B(1)(b)(ii) of the NTA.
210 Section 47B relevantly provides:
(1) This section applies if:
(a) a claimant application is made in relation to an area; and(b) when the application is made, the area is not:
(i) ...; or(ii) covered by a ... proclamation ... under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose; or
(iii) ...; 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 the creation of any prior interest in relation to the area must be disregarded.
211 At trial the State conceded that the primary judge was bound by the decision of the Full Court in Alyawarr (FC) with the consequence that his Honour was required to conclude that the proclamation of the township of Broome was not a proclamation under which the land in the area is to be used for public purposes or for a particular purpose. It is, of course, appropriate for this Full Court also to follow Alyawarr (FC) unless satisfied that it is plainly wrong (Transurban City Link v Allan [1999] FCA 1723; (1999) 95 FCR 553 ("Transurban City Link v Allan") at [27]-[28]).
212 Regulation 38 of the Land Regulations 1882 (WA) ("Land Regulations 1882") provided that Crown lands were "classed severally as town, suburban, and rural lands". The same regulation authorised the Governor from time to time to classify any Crown land. The main significance of the classification accorded land under the Land Regulations 1882 concerned the method whereby the Governor, on behalf of the Crown, could dispose of the land (reg 3). Town lands in all districts of the Colony, and suburban lands in all districts except the Kimberley district, were to be offered for sale by public auction at an upset price to be determined by the Governor in Council (reg 39). Regulation 40 governed the notice to be given of such auctions.
213 By a notice dated 21 November 1883, published in the Government Gazette (WA) dated 27 November 1883, the Commissioner for Crown Lands advised that:
His Excellency the Governor, by virtue of the powers given him by the Land Regulations, has been pleased to order that the Crown Land included within the area hereinafter particularised be classed as Town and Suburban, to form a Townsite ... hereinafter to be known as distinguished as "Broome" containing an area of about 6000 acres.
214 It appears that, notwithstanding the language of reg 38, the Governor sought to order that the Crown lands within the particularised area, which was in the Kimberley district as defined by reg 35 of the Land Regulations 1882, were to be classified as both town and suburban lands. No party placed any reliance on this possible anomaly. The notice dated 21 November 1887 went on to advise that the allotments within the Townsite would be offered for sale at public auction at an upset price of [sterling]20 per lot.
215 By a notice dated 18 June 1902, published in the Government Gazette (WA) dated 27 June 1902, the Under Secretary for Lands advised that the Governor had approved new boundaries for the township of Broome and cancelled those published in the Government Gazette (WA) of 27 November 1883. Again the Crown Land within the boundaries were classified as "Town and Suburban". This notice was given pursuant to s 7 and s 8 of the Land Act 1898. Section 7 authorised the Governor by notice published in the Government Gazette (WA) to alter the boundaries of any town. Section 8 authorised the Governor by notice published in the Government Gazette (WA) to set apart any Crown lands, or any lands within a townsite, as "suburban lands".
216 Part 1 of the Land Act 1898 contained introductory and general provisions. One of those provisions was s 22 which provided:
THE Minister may direct that any Crown lands, or lands reserved or set apart, or about to be reserved or set apart as town or suburban or village lands, shall be surveyed into lots, and may decide upon the size and shape of such lots and also on the width and direction of all streets, roads, lanes or ways within such lands.
Part IV of the Land Act 1898 concerned the purchase at auction of town and suburban lands and, generally speaking, required such land to be offered for sale by public auction at upset prices to be determined by the Governor.
217 The area of the townsite of Broome was varied on three occasions after 1902. As at the date of the native title determination applications the boundaries of the township of Broome were as described in the notice published in the Government Gazette (WA) dated 27 June 1902 as varied by notices in the Government Gazette (WA) dated 18 October 1968 (excluding in area) and 23 October 1981 and 20 November 1981 (including areas).
218 As at the date of the native title determination applications the Land Act 1898 had been repealed and replaced by the Land Act 1933 (WA) ("Land Act 1933"). However, no party suggested that this legislative development had any significance so far as s 47B of the NTA is concerned.
219 The State contended that we should not follow Alyawarr (FC) in so far as it relates to the construction of s 47B(1)(b)(ii). Alyawarr (FC) relevantly concerned Hatches Creek, a 27 hectare site set aside in 1953 for a proposed town. No town has ever been established on the site. In Alyawarr (FC) the Northern Territory submitted that the constitution of the 27 hectares of land as a town fell within both "public purposes" and "a particular purpose" within the meaning of s 47B(1)(b)(ii). The Full Court at [185], speaking of the exclusionary condition in that provision, said:
The terms of the condition raises two issues. The first is as to the nature of the purposes for which the land is to be used. The second is whether an intention to use the land for those purposes must be shown, as a matter of fact, to exist at the time the native title determination application is made or whether it is to be ascertained by reference to the terms of the proclamation under legislation under which it is made.
220 Addressing the first of the above issues the Full Court observed that the definition of a townsite and the setting aside of lands within the townsite as "town lands" under the Crown Lands ordinance embraced a variety of potential subsequent uses none of which was defined at the point of proclamation. We interpolate that the same may be said of the classification of Crown lands as town and suburban lands to form the township of Broome under the Land Regulations 1882 and subsequently under the Land Act 1898.
221 At [187] the Full Court said:
The purpose of s 47B is beneficial. The qualification on its application in s 47B(1)(b)(ii) is no doubt intended to minimise the impact of native title determination applications on areas set aside by proclamation or otherwise under statutory authority for public or particular purposes. That limitation should not be construed more widely than is necessary to achieve its purpose. A proclamation for a broadly expressed purpose which encompasses a variety of potential but unascertained uses is not a proclamation for a particular purpose. The term ‘public purposes’ may arguably encompass a land use planning purpose which is met by establishing a framework or condition for the allocation of private rights such as the grant of residential or commercial leases in a township. Alternatively, it may be construed as referring to purposes of a public nature such as the creation of reserves for public works or recreation or environmental protection. A narrower construction accords with a comprehensible policy that, in the public interest, prior extinguishment which might obviate public exposure to compensation claims or a future act process should be continued in force. It is not necessary in aid of the narrower construction to define its outer limits here. It is sufficient to say that the mere proclamation of a townsite, which might comprise largely private property holdings by lease or otherwise, does not define public purposes or a particular purpose within the meaning of s 47B(1)(b)(ii).
222 Addressing the second of the issues that it had identified at [185], the Full Court held at [188] that any intention to use the land for requisite purpose or purposes was to be gleaned from the terms of the proclamation and its constating legislation as an intention to be fixed for the duration of the proclamation, and not as a matter of fact at the time of the application for a native title determination.
223 It is not entirely clear whether the State sought to distinguish Alyawarr (FC) on the basis that Hatches Creek never became a town whereas Broome did become a town. No evidence was drawn to our attention which established when Broome became a town. On the assumption that the State did submit that Alyawarr (FC) could be distinguished on this basis, we reject the submission. Having regard to the conclusion of the Full Court that the critical time to determining whether the whole or part of the land or waters in the area is to be used for a requisite purpose is to be gleaned from the terms of the relevant instrument and its constating legislation, no relevance attaches to the time, if any, at which the township was established.
224 The State also drew attention to certain observations made by Kirby J during the course of the hearing of the special leave application made by the Northern Territory in Alyawarr (FC). It submitted, by reference to those remarks, that the refusal of the High Court to grant the special leave sought by the Northern Territory did not mean that this Court was bound by the decision in Alyawarr (FC). It is not the refusal by the High Court of special leave to appeal from the judgment of the Full Court of this Court that renders it appropriate for a later Full Court to follow a judgment of a previous Full Court. This Court has itself decided that a Full Court will follow a previous decision of a differently constituted Full Court unless satisfied that it is plainly wrong. As a Full Court constituted of five judges observed in Transurban City Link v Allan at [27]:
It is not in doubt that a Full Court of this Court has power to decline to follow the previous decision of a differently constituted Full Court. The Court is not bound to perpetuate error if error there be. Nor is it in doubt that while the Court has that power, it is a power which should be exercised with great care. The doctrine of precedent, which is fundamental to the common law, brings with it the consequence that decisions of an intermediate court of appeal will be binding on single judges within the same court hierarchy. They will be relied upon by the broader community and the profession. Decisions of a Full Court of this Court are entitled to due respect and will not be lightly departed from.
225 A considered remark made by a Justice of the High Court during the course of the hearing of an unsuccessful application for special leave to appeal from a judgment of the Full Court is entitled to great respect and may provide support for a submission to a later Full Court that the judgment was plainly wrong. However, even a successful application for special leave does not of itself demonstrate error in the judgment below. Only a judgment on the appeal itself, which in the case of an appeal from a judgment of the Full Court must be heard and determined by not less than three Justices of the High Court (s 33(6) of the Federal Court of Australia Act 1976 (Cth)), will do that.
226 The construction of s 47B of the NTA adopted in Alyawarr (FC) has recently been considered by a Full Court in Moses v State of Western Australia [2007] FCAFC 78 ("Moses"). Their Honours were not satisfied that Alyawarr (FC) was clearly erroneous ([169]) and at [170] expressed their respectful agreement with that construction: see also Griffiths v Northern Territory [2007] FCAFC 178 at [158]-[163]. In our view, the construction of s 47B adopted in Alyawarr (FC) should now be accepted as correct unless and until a judgment of the High Court establishes that that construction is erroneous.
227 For the above reason ground 8 of the Further Amended Notice of Appeal fails.
The Intertidal Zone – Cross-Appeal Ground 7
228 Ground 7 of the Amended Notice of Cross-Appeal of the Yawuru claimants challenges the finding of the primary judge that any native title rights or interests in so much of the intertidal zone of the determination area as is vested in The Minister for Transport pursuant to s 9 of the Marine and Harbours Act 1981 (WA) ("the MHA") were extinguished when the seabed in that area was purportedly vested in the Minister. No party suggested that any part of the relevant seabed fell outside the territorial boundary of Western Australia and we therefore proceed on the basis that the whole of the area is within those boundaries.
229 His Honour determined this issue on an ex tempore basis and did not publish formal reasons for judgment. Examination of the transcript at first instance reveals that his Honour followed Daniel at [889]-[892] and found support for that approach in Sydney Harbour Trust Commissioners v Harriott [1923] HCA 14; (1923) 32 CLR 53 ("Sydney Harbour Trust Commissioners v Harriott").
230 The MHA by s 8 created a body corporate with perpetual succession under the name "The Minister for Transport". Section 9 authorised the Governor by proclamation to vest in the Minister any real or personal property of any kind or interest in any such property. Section 10 authorised the compulsory acquisition of land required for the purposes of the NTA. Section 12 provided that the vesting of any property in the Minister under s 9 did not affect or derogate from any lease, tenancy, licence or other like agreement to which the property was subject immediately before the vesting. It also provided that the Minister could grant a lease of land or other property vested in the Minister under the Act.
231 By a proclamation published in the Government Gazette (WA) dated 5 February 1982 the Governor vested in the Minister for Transport an area of seabed bounded as indicated in the proclamation and described as the Broome Port Area.
232 The Yawuru claimants contended that the above proclamation did not vest in The Minister for Transport a legal estate in fee simple in either the seabed or the space above the seabed. In our view, the MHA, and particularly s 12 thereof, reveals a legislative intention to the contrary. This was the view taken in Daniel [889]-[892]. It is consistent with the construction placed by the High Court on the Sydney Harbour Trust Act 1900 (NSW) in Sydney Harbour Trust Commissioners v Wailes [1908] HCA 19; (1908) 5 CLR 879 and Sydney Harbour Trust Commissioners v Harriott.
233 We reject the submission of the Yawuru claimants that because part of the area vested in the Minister had earlier been vested in another Minister the proclamation cannot be seen as conveying a legal estate in fee simple. The Minister was a body corporate with perpetual succession and thus a different legal entity from the other Minister. We also reject the argument that it is "inherently improbable" that the legislature would have intended that the Minister should have absolute and unqualified ownership of this large area. First, s 9 of the MHA authorised the Governor by proclamation to withdraw any land from the Minister and vest or revest it in the Crown. If the area vested in the Minister proved larger than necessary for the proper purposes of the Minister, its size could have been reduced. Secondly, there is no necessary inconsistency between the vesting of fee simple in the intertidal zone and the continuation until abrogated of the public right of fishing and navigation (Commonwealth v Yarmirr (1999) 101 FCR 171; Gumana v Northern Territory of Australia [2007] FCAFC 23 at [83]- [89]).
234 In the alternative the Yawuru claimants contended that if the vesting was capable of extinguishing native title it:
(a) was invalid to that extent by operation of s 10(1) of the Racial Discrimination Act 1975 (Cth) ("RDA") and is a validated category D past act under the NTA; and
(b) is not a previous exclusive possession act and a "relevant act" for the purposes of s 121 of the TVA.
It does not appear that these contentions were advanced before the primary judge. However as no party objected to their being raised on appeal we proceed on the basis that it is expedient in the interests of justice to allow the Yawuru claimants to rely on them (Commissioner of the Australian Federal Police v Oke [2007] FCAFC 94 at [17]).
235 Similar issues arose for consideration in Ward (HC) at [249]-[261]. At [250] Gleeson CJ, Gaudron, Gummow and Hayne JJ observed:
On its face, the Land Act 1933 does not single out native title rights and interests for different treatment. And leaving aside the question of compensation, there is nothing to suggest that, so far as concerns the vesting of reserves, the practical operation of the Land Act 1933 resulted in the different treatment of native title rights and interests and non native title rights and interests.
The same observation may be made concerning the MHA.
236 In Ward (HC) their Honours went on to conclude at [252] that the only difference in treatment under the Land Act 1933 of native title rights and interests and other interests in land was that only the holders of native title rights and interests were not entitled to compensation as required by the Public Works Act 1902 (WA) ("Public Works Act") when their rights and interests were brought to an end. Consequently their Honours held at [253] that the vesting was valid but the RDA would supply to native title holders a right of compensation for that which was lost upon vesting.
237 We accept the submission of the State that the approach adopted by the majority of the High Court in Ward (HC) is equally applicable in this case. As at the date that Broome Port Area was vested in the Minister of Transport, s 10 of the MHA provided for compulsory acquisition of land in accordance with the Public Works Act. No provision was made under either the MHA or the Public Works Act for the payment of compensation in respect of native title rights and interests in either land or waters brought to an end. In the circumstances the RDA would supply to native title holders compensation for rights and interests lost upon the vesting in the Minister of Transport of the area of seabed referred to in the proclamation published in the Government Gazette (WA) dated 5 February 1982.
238 Because the vesting of the above area was not invalid, it was not a "past act" within the meaning of Div 2 Part 2 of the NTA (see s 228 of the NTA). It is therefore necessary to give consideration to Division 2B of Part 2 of the NTA which is headed "Confirmation of past extinguishment of native title by certain valid or validated acts".
239 Section 23B, which defines "previous exclusive possession act", and s 23F, which defines "persons non-exclusive possession act", are central to the operation of Division 2B of Part 2 of the NTA. The vesting of the Broome Port Area in the Minister of Transport is a "previous exclusive possession act" as defined by s 23B as it is valid, took place before 23 December 1996 and vested a freehold estate on the Minister (s 23B(2)(a), (b) and (c)(ii)). Thus, if a law of the State contains a provision to the same effect as s 23D and s 23DA of the NTA, the law of the State may confirm the extinguishment of any native title in relation to the land or waters covered by the freehold estate (s 23E and s 23C of the NTA).
240 Section 12I(1) of the TVA defines "relevant act" to include a previous exclusive possession act under s 23B(2)(a), (b) and (c)(ii). Section 12I(2) provides that if a relevant act is attributable to the State the act extinguishes any native title in respect of the land or waters covered by the freehold estate and the extinguishment is taken to have happened when the act was done. The effect of Division 2B of Part 2 of the NTA, read together with s 12I of the TVA, is thus that native title is taken to have been extinguished in the Broome Port Area upon the publication of the proclamation vesting the area in the Minister for Transport.
241 Ground 7 of the Amended Notice of Cross-Appeal fails.
Reserve 631 – Cross Appeal Ground 8
242 Ground 8 of the Amended Notice of Cross-Appeal complains of the finding made by the primary judge that Reserve 631 was validly created.
243 By a notice dated 24 November 1883, which was published in the Government Gazette (WA) dated 27 November 1883, various areas of land, including an area of 10,000 acres adjoining Broome, were said to be "set apart, as Public Reserves". The purpose for which the reservation of the 10,000 acres adjoining Broome ("Reservation 631") was said to be made was "public purposes, adjoining Broome, Roebuck Bay".
244 The primary judge found that Reserve 631 was validly created pursuant to reg 29 of the Land Regulations 1882. Regulation 29 provided:
The Governor is hereby authorised, subject to such conditions and limitations as he may think fit, to except from sale, and either to reserve to Her Majesty, her heirs and successors, or to dispose of in such other manner as for the public interest may seem best, such lands, whether surveyed or not, as may be required for the following objects and purposes:
1. For the use or benefit of the aboriginal inhabitants.
2. Military or naval defence.
3. Railways, tramways, and canals.
4. Quays, landing places, and ferries.
5. Sites for churches and chapels, with not exceeding 100 acres of glebe land attached, and sites for parsonages.6. Sites for schools and other buildings for the purposes of education, and land for the endowment of schools and other educational institutions of a public character.
7. Sites for mechanics’ institutes, hospitals, and institutions for charitable purposes, markets, court-houses, prisons, or other edifices for public use or purposes for the Colony, or any borough or road board.
8. Cemeteries.
9. Places necessary for the embellishment of towns, or for the health, recreation, or amusement of the inhabitants.
10. For the endowment of municipal corporations within the Colony.
11. For sinking shafts and digging for coal, iron, copper, lead, or other minerals and metals.
12. Resting places and commonage for horses, cattle and sheep.
13. Any purpose of safety, public utility, convenience, or enjoyment, or for otherwise facilitating the improvement and settlement of the Colony.
(emphases added)
245 Regulation 30 of the Land Regulations 1882 provided:
A full and complete description of every such reserve, and of the purposes for which it is made, shall, so soon as possible, be published in the Government Gazette (WA), and set forth on the authenticated maps in the Lands Office.
246 In Rubibi (No 7) at [41] the primary judge said:
The law applicable to a challenge to the validity of a regulation made in the exercise of a statutory power to make regulations would appear to be applicable to the analogous exercise of a power to reserve land for certain purposes under a regulation that provides for the exercise of that power. In South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161 at 178–9, Brennan J stated that, as the validity of a regulation depends on whether it answers the statutory description, the problem is one of characterisation. His Honour explained that the character of the regulation is ascertained by the court’s own assessment of the directness and substantiability of the connection between the likely operation of the regulation and the statutory object to be served. Wilson, Dawson, Toohey and Gaudron JJ stated (at 165):
... there must be conceded a broad, rather than a narrow, approach in determining the nexus between the exercise of the power and the achievement of the purpose for which it is conferred.
and (at 168):
In the course of argument the parties accepted the reasonable proportionality test of validity (cf Deane J in The Commonwealth v Tasmania (the Tasmanian Dam Case); namely, whether the regulation is capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose. (footnote omitted)
247 South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161 concerned an issue rather different from that raised by this ground of cross-appeal. Section 10(1) of the Waterworks Act 1932 (SA) ("the Waterworks Act") empowered the Governor to make regulations for "regulating, controlling or prohibiting the use of land within a watershed ... so as to reduce or prevent their deterioration or pollution of any water within a watershed ....". In reliance on s 10(1), the Governor made a regulation that prohibited the erection, construction, enlargement or establishment of a zoo on any land within a watershed. A landowner challenged the validity of the regulation. The High Court at 165 accepted that the appropriate test of validity was whether the regulation was reasonably capable of being considered reasonably proportionate to the pursuit of the enabling purpose. After considering evidence adduced by the parties on that question, the High Court determined that the regulation was a valid exercise of the power conferred by s 10 of the Waterworks Act.
248 No question of reasonable proportionality is raised by the setting apart of Reserve 631; it is not in dispute that the 10,000 acres could have been validly reserved under reg 29 of the Land Regulations 1882. The issue raised by the amended notice of cross-appeal is whether the area of 10,000 acres was validly reserved under reg 29. The issue is whether, on the proper construction of reg 29, the regulation authorised the Governor to reserve lands for a purpose as general as "public purposes, adjoining Broome, Roebuck Bay". Authorities concerning differently worded legislative instruments can provide only limited guidance on this issue.
249 Regulation 29 prescribed thirteen numbered objects and purposes (some of which include a number of alternatives) for which the Governor was authorised to reserve land. Regulation 30 confirmed what would, in any event, be the natural construction of reg 29, namely, that the Governor was required to identify the object or purpose of every reserve created under the regulations. Each of the objects and purposes listed in reg 29 is a public purpose. What the regulations authorised the Governor to do was to reserve such lands as may be required for any of the listed objects and purposes. The language of the regulation was not apt to authorise the Governor to reserve lands for public purposes if satisfied that such lands may be required for any one or more of the objects or purposes identified in the regulation.
250 Only the objects and purposes numbered 9 and 13 could even arguably have authorised the reservation of lands pursuant to reg 29 for "public purposes, adjoining Broome, Roebuck Bay". However, in our view, a purpose so described is insufficiently specific to give the lands so reserved the character of a reservation for the purpose of providing a place necessary for the "embellishment" of Broome or for the health, recreation, or amusement of the inhabitants of Broome. It could not be suggested that anything in the notice published in the Government Gazette (WA) dated 27 November 1883 would prevent the Crown from using Reserve 631 for a purpose other than the embellishment of Broome or for the health, recreation or amusement of the inhabitants of Broome.
251 The question of whether the nominated purpose is one authorised by reg 29.13 is more difficult to answer. However, we have concluded that it is not. In our view, the language of reg 29.13, and in particular the reference to "[a]ny purpose of ..." requires the particular purpose or purposes of safety, public utility, convenience, or enjoyment, or for otherwise facilitating the improvement and settlement of the Colony, to be identified. This reading of reg 29.13 is supported by the specificity of the other objects and purposes identified in the regulation.
252 We therefore conclude that the notice by which Reserve 631 was purportedly created did not comply with the requirements of reg 29 of the Land Regulations 1882. The State did not advance any submissions in support of a contention that Reserve 631 was nonetheless validly created.
253 For the above reasons we conclude that this ground of cross-appeal succeeds.
Broome Cemetery Reserve 1647 – Cross-Appeal Grounds 9 & 10
254 The primary judge held that the legal estate in the land reserved for the Broome cemetery vested in trustees and that the rights flowing from the vesting were inconsistent with any native title rights in the reserved land so that native title was extinguished over the whole area of the reserve.
255 Central to this conclusion were the terms of s 10 of the Cemeteries Act 1897 (WA) ("the Cemeteries Act") which provided:
THE Governor may from time to time appoint, and from time to time remove, any number of persons, not less than three, to be trustees of any public cemetery, and may, by deed of grant, vest any lands and hereditaments in such trustees for a public cemetery, and two of such trustees shall be a quorum for transacting business.
Every such removal and appointment shall be notified in the Government Gazette, and upon the copy of the Gazette containing such notification being served upon the Registrar of Titles, the legal estate in the trust premises shall, without any further transfer or conveyance, vest in the new trustee or trustees, either solely or conjointly with any continuing trustee or trustees as the case may be.
256 The primary judge reasoned thus at [139]:
The Government Gazettes reveal the appointment of, inter alia, councillors as trustees under the CA [Cemeteries Act]. While the evidence does not disclose whether a deed of grant to trustees under s 10 was made, it is probable that such a deed did exist, and that the legal estate in the reserved land ultimately vested in the Shire. The reason for that conclusion is that it is implicit in the functions of trustees under the CA that the legal estate in the cemetery vests in them upon their appointment. Also, it is difficult to think of a reason why the Governor would appoint trustees but not vest the legal estate in them.[Explanation added]
257 We are unable to agree with the assumption of the primary judge that there was a vesting of the land in the trustees under s 10. As his Honour records, there was no evidence of the fact. The investigation of land tenure and the materials produced for the purpose of this case were extremely extensive and detailed. Against this background, the absence of evidence of proof of vesting is more probably explained by some irregularity in the process of the administration of the legislation and the consequent absence in fact of any vesting.
258 Where extinguishment is said to arise from an act of State, or executive act, evidence is required to prove the fact and content of the act. The State, as the party asserting extinguishment, bears the evidentiary onus of proving the nature and content of the act said to extinguish native title: Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 (Ward (FC)) at [120]; Yorta Yorta at [159]. In relation to the Broome Cemetery Reserve 1647, the State has failed to produce evidence to support that conclusion.
259 His Honour dealt with an alternative argument at [137] as follows:
The Shire and the State also sought to rely on the creation of reserve 1647 and its use as the Broome Cemetery to argue that the graves were established with the authority of the Crown. The argument raises the issue of whether the exercise of the right to use the reserve as a cemetery has extinguished native title. It is apparent from the material before the Court and from the legislation that has applied from time to time to the use of the reserve as a cemetery that the exercise of the right of use, either directly or indirectly, was authorised by or on behalf of the Crown. For example, Government Gazettes revealed that under the Cemeteries Act 1897 (WA) (‘the CA’), the Governor in Executive Council appointed trustees of the cemeteries, made by-laws for the management of the cemeteries, provided for applications for land in the cemeteries to be used as graves and imposed fees for use of the land as graves. Accordingly, it is appropriate to view the exercise of the right to use the land within the reserve as a cemetery as the taking of steps authorised by the Crown, which ‘created in others, or asserted, rights in relation to the land that were inconsistent with native title rights and interests over the land’: see [214] in Ward (HC). It would follow that, to the extent that there has been an exercise of the right to use reserve 1647 as a cemetery for the conduct of burials, the digging of graves and the laying of tombstones, the exercise of that right has had an extinguishing effect on native title in respect of the areas where that has occurred. However, the extinguishing effect does not extend to vacant areas of the reserve where the exercise of the right to use those areas for the purposes of a cemetery has not yet occurred.
260 The Yawuru claimants argued that in this analysis the primary judge relied upon the use of the cemetery as the basis for the conclusion that native title had been extinguished over that part of the cemetery which had been used for burials. They contended that the proper enquiry established in Ward (HC) required the examination of rights granted by the Crown, and not the use to which the land was put. The High Court said at [214] – [216]:
214 It is important to recall that the ultimate question is whether, by the steps that were taken, the Crown created in others, or asserted, rights in relation to the land that were inconsistent with native title rights and interests over the land. It was submitted that the features of the statutory regulation of public reserves which we have mentioned indicated that reservation, even without vesting, amounted to dedication to the purpose specified in the instrument of reservation in the sense, so it was submitted, that reservation prevented the Crown from applying the land to some other purpose and created some right in members of the public generally or a section of the public: Randwick Corporation v Rutledge [1959] HCA 63; (1959) 102 CLR 54 at 74, per Windeyer J.
215 The reference by Brennan J, in the passage of his reasons in Mabo [No 2] that is set out earlier, to use of the land that is reserved, may distract attention from the relevant inquiries. They are, as we have said, whether rights have been created in others that are rights inconsistent with native title rights and interests, and whether the Crown has asserted rights over the land that are inconsistent with native title rights and interests. Use of the land may suggest, it may even demonstrate, that such rights have been created or asserted, but the basic inquiry is about inconsistency of rights, not inconsistency of use. Further, as has already been pointed out, it is often necessary to examine inconsistency by reference to the particular native title right and interest concerned.
216 Because the disposition of Crown lands in Western Australia is now, and, since the coming of representative government, has been, wholly regulated by statute it is to the applicable statutes that attention must be directed. If the land is used in some way, there will be some statutory warrant for that use. In some cases that statutory authority will be in a Land Act; in others it will be found in some other statute. The question of extinguishment of native title rights and interests requires attention to the rights that are asserted rather than the use that is made of the land.
[emphasis in original]
261 A close reading of the reasoning of the primary judge at [137] discloses that his Honour was careful to examine not the use of the land but the right to use the land. He cited Ward (HC) at [214] and his analysis proceeded in accordance with its requirements. We therefore do not accept the Yawuru claimants’ argument in this regard. However, there is a further matter to be considered in relation to extinguishment.
262 The Yawuru claimants rightly accepted that the creation of the cemetery reserve extinguished the native title right to determine how the land could be used, and the right to control access to the land. That concession is supported by Ward (HC) at [219]-[220]:
219 Nevertheless, by designating land as a reserve for a public purpose, even a purpose as broadly described as "public utility", the executive, acting pursuant to legislative authority, decided the use or uses to which the land could be put. The executive thus exercised the power that was asserted at settlement by saying how the land could be used. The exercise of that power was inconsistent with any continued exercise of power by native title holders to decide how the land could or could not be used. The executive had taken to itself and asserted (pursuant to the authority conferred in that regard by statute) the right to say how the land could be used. This step was not, however, necessarily inconsistent with the native title holders continuing to use the land in whatever way they had, according to traditional laws and customs, been entitled to use it before its reservation.
263 However, the reasoning of the primary judge relied upon his view that the trustees had rights to use the cemetery for burials, the digging of graves and the laying of tombstones. These rights derived from the Cemeteries Act, which granted specific and extensive rights to trustees. The high point is perhaps s 18 which provided:
18. THE trustees may set apart such parts of the cemetery as they think fit for the purpose of granting exclusive rights of burial therein, and they may grant, either in perpetuity or for a limited time, and subject to such conditions as may be prescribed, the exclusive right of burial in any parts of the cemetery so set apart, or the right of one or more burials therein, and may grant the right of placing any monument, tombstone, or enclosure in the cemetery.
264 Section 22(1) of the Cemeteries Act elaborated the situation thus:
22. (1.) THE exclusive right of burial by this Act provided for, whether granted perpetuity or for a limited time, shall be considered the personal estate of the grantee, and may be assigned by him in his lifetime or bequeathed by his will.
265 The exclusive right of burial and the right to erect monuments which the trustees were empowered to grant could not co-exist with the native title rights claimed by the Yawuru claimants. The question, however, is whether the State demonstrated that the trustees had these rights under the Cemeteries Act. On the construction of the Act which we favour this was not established.
266 The rights and powers granted under the Cemeteries Act to trustees are, in our view, dependent upon the vesting of the cemetery land in the trustees. Section 10 speaks of the appointment of trustees and the vesting of the land for a cemetery as a combined matter. Thereafter, reference to trustees in the statute is intended as a reference to trustees in whom the land of the cemetery has been vested. The exercise of powers by trustees under the Act depends on the cemetery land having been vested in them. On the evidence the Broome cemetery land has not been vested even though trustees have been appointed. The mere passing of the legislation did not extinguish native title. Neither did the appointment of trustees.
267 Further, the primary judge held that the appointment of members of the council as trustees brought into operation s 212 of the Municipal Corporations Act 1906 (WA) so that the cemetery became vested in the council. Section 212 provides:
Whenever the council have been heretofore, or shall be hereafter, appointed trustees of any cemetery, all property granted or held on trust to or by such council, or other the trustees of such cemetery, for the purposes of such cemetery, shall vest in the municipality, subject to the trusts affecting the same; and the council shall have and perform all the powers and trusts by law conferred on the trustees of such cemetery.
268 On our view of the construction of the Cemeteries Act and the proven facts, the cemetery land was not vested in the trustees albeit that the trustees were appointed. Consequently, s 212 did not come into operation. It only applies where property is ‘granted or held on trust to or by such council’. Without a vesting under s 10 of the Cemeteries Act, the cemetery land was not granted or held on trust by the councillors. The purpose of s 212 is to ensure that cemetery land vested in councillors can be controlled by the corporate body, the municipality, rather than by individuals.
269 The appointment of trustees together with the vesting of the cemetery land in the trustees may well have extinguished native title but, on the evidence, this has not occurred. Hence, in relation to the cemetery reserve 1647, the native title rights to determine the use of the area and right to control access to it were extinguished by the creation of the reserve but native title was otherwise not extinguished.
McMahon Oval Reserve 41551 – Cross-Appeal Ground 11
270 This ground raises the issue whether the primary judge erred in holding that the earthworks undertaken by the local authority in 1989 for the construction of the McMahon oval had the effect of extinguishing native title.
271 A previous exclusive possession act (s 23B(7)) attributable to the Commonwealth or a category A past act (s 229(4) of the NTA) "extinguishes native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated" (s 15(1)(b)(i), and s 23C(2)(a)).
272 A previous exclusive possession act "consists of the construction or establishment of any public work that commenced to be constructed or established on or before 23 December 1996" (s 23B(7b)). A past act consisting of the construction or establishment of any public work is a category A past act if:
(a) the work commenced to be constructed or established before 1 January 1994 and the construction or establishment had not been completed by that day; or(b) the work was constructed or established before 1 January 1994 and still existed on that day; or
(c) the work was constructed or established on or after 1 January 1994 and the construction or establishment is a past act because subsection 228(9) applies.
(s 229(4))
273 Section 253 of the NTA provides that "public work" means:
(a) any of the following that is constructed or established by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities:
(i) a building, or other structure (including a memorial), that is a fixture; or(ii) a road, railway or bridge; or
(iia) where the expression is used in or for the purposes of Division 2 or 2A of Part 2 – a stock-route; or
(iii) a well, or bore, for obtaining water; or
(iv) any major earthworks; or
(b) a building that is constructed with the authority of the Crown, other than on a lease.
274 It also provides that:
major earthworks means, earthworks (other than in the course of mining) whose construction causes major disturbances to the land, or to the bed or subsoil under waters;
275 Provisions in the same terms are made applicable in Western Australia by s 7 and s 12J respectively of the TVA.
276 The primary judge’s reasoning on the issue is contained in a short passage which can conveniently be set out in full as follows:
132 McMahon Oval is area 135 (R41551). This reserve includes an uncompleted sports oval which covers approximately 40% of the reserve. The oval has never been used as an oval. There was uncontested evidence that, in the course of creating the oval, the Shire carried out earthworks and installed drainage ditches and paths. There was also evidence that the whole of the reserve was traversed and disturbed by heavy earthmoving equipment during the creation of the oval and drainage ditches. A water storage tank was installed in the northern corner of the reserve. I undertook a site visit to McMahon Oval. I am satisfied that creation of the oval was a major earthwork the construction of which involved usage of the whole of the reserve. It is therefore not necessary to consider whether the drain on the reserve was also a major earthwork, although it probably was not such a work.
133 The Yawuru claimants also contended that, even if the work was a major earthwork, and therefore a public work, native title was not extinguished because the work was not completed (see ss 15(1)(b)(i) and 23C(2) of the NTA). It is correct that under ss 15(1)(b)(i) and 23C(2), extinguishment only occurs on completion of the construction of the public work or on its ‘establishment’. However, the public work relied upon by the Shire was not the uncompleted oval. Rather, it was the completed ‘major earthworks’. Accordingly, as the earthworks that were competed are ‘major earthworks’, they result in extinguishment under ss 15(1)(b)(i) and 23C(2), notwithstanding that not all of the works planned for the area have been completed.
277 The Yawuru claimants contended that the public work under consideration was the creation of the oval. They further contended that the public work had to be complete in order for it to extinguish native title. In this case the primary judge found that the creation of the oval was not complete and, hence, it was argued, his Honour should have concluded that native title was not extinguished.
278 The Yawuru claimants also submitted that even if the works constituted major earthworks, the works could not be a public work within s 253(a)(iv) if the project of which the works formed part was incomplete. That is to say, major earthworks which do not constitute a completed project are not public work. They relied upon the use of the words "constructed or established" in the chapeau to s 253 as indicating that public work only falls within the definition if it is complete or operational. Further, the Yawuru claimants argued that each of the other works defined in s 253, such as roads, buildings and bridges, relate to work which has reached a useable state. The same requirement, it was contended, must be seen to apply to the remaining category of major earthworks. Major earthworks do not constitute public work unless the project in relation to which it is undertaken has been finished.
279 The problem confronted by this argument is the clear wording of s 253(a)(iv). Major earthworks are stated to be public work. There is no warrant in the wording of s 253(a)(iv) to require that major earthworks only exist when they are part of an otherwise completed project. We accept the arguments of the State and Shire of Broome to this effect, which were adopted by the Commonwealth. The Shire also argued that s 15(1)(b)(i) and s 23C(2) do not require the major earthworks themselves to be completed, but as the question does not arise on the facts of this case, we do not need to resolve it.
Occupation for the purpose of s 47A and s 47B – Cross-Appeal Ground 12
280 This ground raises for determination whether the primary judge erred in his consideration of the requirement in s 47A(1)(c) and s 47B(1)(c) that the member or members of the native title claim group occupied particular areas at the time when the application was made.
281 Sections 47A and s 47B of the NTA relevantly provide:
47A.
(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.
Prior extinguishment to be disregarded
(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).
Effect of determination
(3) If the determination on the application is that the native title claim group hold the native title rights and interests claimed:
(a) the determination does not affect:
(i) the validity of the grant or vesting or of the creation of the trust or reservation; or
(ii) the validity of the creation of any other prior interest in relation to the area; or
(iii) any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and
(b) the non-extinguishment principle applies to the grant or vesting or the creation of the trust or reservation or any other prior interest.
...47B
(1) This section applies if:
(a) a claimant application is made in relation to an area; and
(b) when the application is made, the area is not:
(i) covered by a freehold estate or a lease; or
(ii) covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose; or
(iii) subject to a resumption process (see paragraph (5)(b)); and
(c) when the application is made, one or more members of the native title claim group occupy the area.
Prior extinguishment to be disregarded
(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 the creation of any prior interest in relation to the area must be disregarded.
Effect of determination
(3) If the determination on the application is that the native title claim group hold the native title rights and interests claimed:
(a) the determination does not affect:
(i) the validity of the creation of any prior interest in relation to the area; or
(ii) any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and
(b) the non-extinguishment principle applies to the creation of any prior interest in relation to the area.
282 The primary judge in Rubibi (No 7) at [76] to [86] emphasised that occupation is a question of fact involving matters of fact and degree. He referred, however, to a number of considerations, some derived from the authorities, which might be relevant to the question of occupation. They can be summarised thus:
• A broad view should be taken of the word ‘occupy’: Ward (FC) at [449], Alyawarr (FC) at [193] and Neowarra v State of Western Australia [2003] FCA 1402 at [682].
• Nevertheless, generally, occupation of an area requires something more than a traditional connection with or mere use or visitation to the area.
• The requirement may be met even if the applicant is rarely present on the land so long as the person makes use of the land for the reserved purpose as and when the person wishes to do so: Ward (FC) at [449].
• Although frequent use of the land is not necessary, frequency of use of the land can be a relevant factor.
• The requirement of occupation should be understood in the sense that the indigenous people had traditionally occupied the land, rather than in the sense of occupation according to common law principles: Hayes v Northern Territory [1999] FCA 1248; (1999) 97 FCR 32 (Hayes) at [162].
• The use of traditional country by members of the relevant applicant group which is neither random or coincidental but in accordance with the way of life, habits, customs and usages of the group is, in the context of the legislation, sufficient to indicate occupation of the land: Hayes at [162].
• Evidence in relation to connection for the purpose of s 223(1)(b) may be relevant to proof of connection, but it is wrong to equate connection with occupation.
• Where the use is not traditional, the question remains whether the evidence about connection, use, habitation or visitation is sufficient to warrant a conclusion, as a matter of fact, that the requisite occupation has been established.
• While random or coincidental use may be unlikely to constitute occupation and traditional use may be more likely to constitute occupation, there is no proper basis for reading a requirement for traditional occupation into s 47A and s 47B.
• It is not necessary for the occupation of the land to be exclusive or confined in fact to people who are members of the claimant group. It is sufficient for the claim group member to be one of many people who share occupancy. Occupation by non-claim group people does not preclude the applicants from occupying the area: Ward (FC) at [449].
283 The primary judge then discussed the significance of the use of the area in question by the general public. He said at [85] to [88]:
85 ... [I]f the evidence establishes a similar non-traditional use of the relevant area by the general public, the fact that some members of the public using the area are claim group members is unlikely to be sufficient to justify a finding of occupation of the area by one or more claim group members. The Shire of Broome contended that, where the physical presence of a claim group member in an urban area is for a purpose and of a character that is indistinguishable from the physical presence of a member of the public, the presence should not be considered to be ‘occupation’ for the purposes of ss 47A or 47B. Although there is merit in the Shire’s submission, I would not go so far as to accept it as a criterion for refusing to find the requisite occupation. However, general public use of the relevant area is a relevant, if not a determinative, factor. Ultimately, the question is whether the requisite occupation by a claim group member has been established.
86 The Yawuru claimants argued that their traditional connection with the Yawuru claim area, or with specific areas, distinguishes the use of claim areas by claim group members from use by the general public. While that question is a matter for evidence, I do not accept that the connection contended for can be assumed in respect of use of public areas where the use of those areas by claim group members is not a use for a traditional activity and is not distinguishable from use of the areas by other members of the public.
87 In my findings in favour of occupation of a number of areas both within and outside the Broome region and against occupation of certain areas within Broome, I have taken into account the fact that, generally, visits to and use of areas in Broome by the public is largely indistinguishable from visits to and use of those areas by members of the claim group.
88 Plainly, a variety of factors can be relevant to occupation and, as I have just explained, there may be different outcomes, even where the nature of the occupation has superficial similarities. The case put in respect of each area must be considered in its own context and on its own facts having regard to all of the circumstances of the case.
284 The Yawuru claimants contended that the primary judge made three errors in approach to the determination of whether they occupied the areas under consideration.
285 First, the Yawuru claimants questioned why occupation should be construed to require that the use of land by the applicant be a traditional use.
286 The answer to this argument is that the primary judge did not impose such a requirement. Indeed he held in terms that there is no proper basis for reading a requirement of traditional occupation into the sections: see [83]. The Yawuru claimants rely on the primary judge’s use of the expression "traditional use" in passages such as [84]:
The State argued that the kind of occupation contemplated by ss 47A and 47B was traditional occupation, in the sense of use of the land in accordance with traditional laws and customs, rather than random or co-incidental use. Whilst random or co-incidental use may be unlikely to constitute occupation, and traditional use may be more likely to constitute occupation, there is no proper basis for reading a requirement of traditional occupation into ss 47A and 47B. However, traditional use was successfully relied upon to establish occupation in Hayes and Daniel. Where the use is not traditional, the question remains whether the evidence about connection, use, habitation or visitation is sufficient to warrant a conclusion, as a matter of fact, that the requisite occupation has been established.
287 It is important to have regard to the context in which this passage appears. It follows immediately after the statement that it would be erroneous to equate connection with occupation and the passage itself contains the conclusion that there is no proper basis for reading a requirement for traditional occupation into ss 47A and 47B. In Moses at [215], the Full Court regarded this passage as expressing the view that occupation need not be traditional, and agreed with that view. Further, the passage is an adoption and explanation at [81] of the view of Olney J in Hayes at [162] as follows:
The use of traditional country by members of the relevant claimant group which is neither random nor co-incidental but in accordance with the way of life, habits, customs and usages of the group is in the context of the legislation sufficient to indicate occupation of the land.
288 By ‘traditional use’, the primary judge clearly meant use in accordance with the way of life, habits, customs and usages of the group. So understood, this was a helpful elaboration of the concept. It aids in the task described in Moses at [206] as follows:
The extent to which an area must be inhabited or used by one or more claimants in order to satisfy that requirement is not easily described and cannot be reduced to a simple formula; it is a matter of fact and degree.
289 Indeed in Moses, the Full Court also adopted the explanation of the concept of occupation provided in Hayes and drew attention to the fact that the explanation had been approved in a number of other decisions of the Court.
290 Next, the Yawuru claimants contended that it was wrong for the primary judge at [85] to consider that general public use of the area is a relevant if not determinative factor in determining whether they occupied the area. They contended that the primary judge erred by taking into account the fact that generally visits to and use of areas in Broome by the public was largely indistinguishable from visits to and use of those areas by members of the claim group. They argued that such a consideration was irrelevant to whether or not an area was occupied.
291
Once again, the approach of the primary judge must been seen in context. He was dealing with an argument of the Shire of Broome that use by the Yawuru claimants which was indistinguishable from use by the public did not amount to occupation. He responded by rejecting that extreme position but by holding that public use may be a relevant factor. Importantly, he went on to say at [85] "ultimately, the question is whether the requisite occupation by a claim group member has been established". His Honour’s suggestion that public use might be determinative is perhaps overstating the position. However, it is clear from [87] and [88] that his Honour did not treat it as determinative, but he took it into account with a variety of factors and he had regard to all the circumstances of the case. Whilst we regard general public use as a weak signifier against occupation, there is no reason to think that the primary judge placed more than appropriate reliance on it in this case.
292 Finally, the Yawuru claimants challenged a number of the findings of fact made by the primary judge where he found that they had not established occupation for the purpose of s 47B(1)(c).
293 The difficulty facing parties mounting such a challenge on appeal, and the role of an appellate court in such circumstances were recently explained by the Full Court in Moses in relation to the requirements of proof of connection. Many of those considerations are relevant to the proof of occupation in the present case. The Full Court said at [308] to [309]:
308 The difficulty faced by a party alleging an error in the fact finding process in a proceeding such as the present is formidable. The question whether the applicants for a native title determination have established the necessary degree of connection to land by traditional laws and customs is a matter of judgment involving an assessment of a wide array of evidence. Where the trial has involved 81 hearing days, including 35 days ‘on country’ at 76 sites, hearing from 76 indigenous witnesses, 6 pastoralists and 11 expert witnesses on matters of archaeology, history, linguistics and anthropology, the assessment is a complex process of assimilation of a large and diverse body of material. The conclusions will often necessarily be expressed in a highly summarised form, and in some instances will involve matters of impression. In the present case these factors are evident throughout his Honour’s reasons concerning the degree of connection. The purpose in setting out in such detail earlier in these reasons the approach taken by his Honour is to illustrate the scope of the exercise and the interlocking nature of many of the issues so that findings on the evidence relating to one issue are often applied to other issues as well.
309 Nevertheless, these circumstances, however challenging, do not alter the role of an appellate court, which was explained by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [25] thus:
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’ (Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 at 564, citing The Glannibanta (1876) 1 PD 283 at 287).
In CSR v Della Maddalena (2006) 224 ALR 1, [2006] HCA 1, Kirby J (with whom Gleeson CJ agreed) explained some of the limitations on the appellate role inherent in the nature of the function at [17] as follows:
The ‘limitations’ introduced into the rehearing based on the record of the trial are those necessarily involved in that form of appellate procedure. Such limitations include those occasioned by the resolution of any conflicts at trial about witness credibility based on factors such as the demeanour or impression of witnesses; any disadvantages that may derive from considerations not adequately reflected in the recorded transcript of the trial; and matters arising from the advantages that a primary judge may enjoy in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions from the evidence, viewed as a whole.
[Footnotes omitted]
The last two limitations referred to are of special importance in an appeal such as the present.
294 In the present case, the primary judge not only visited the areas in question and observed the terrain, the position in relation to other land subject of the application and the location in relation to important geographical features, he also had the benefit of many days of hearing evidence from a large number of members of the native title claim group and had the opportunity to assess their activities on the land. All of these advantages are unavailable to the appeal court, and are likely to have helped the primary judge assess the evidence in relation to occupation. This Court is confined to the bare words on the pages of transcript.
295 The Yawuru claimants argued that the primary judge should have found on the evidence that a member or members of the native title claim group occupied the following areas:
• Areas at Burrgugan, or Morgan’s Camp• Area 2593 (UCL 90)
• Areas near Broome Road and Chinatown
• Small areas at Kennedy Hill
• Bush areas north of the airport and Tanami Drive subdivision areas
• Area 2576 (UCL 73)
• Areas 2585 (UCL 82) and 2589 (UCL 86)
• Minyirr areas
• Kavite Road subdivision areas
These descriptions are taken from the Yawuru claimants’ written submissions dated 11 December 2006 and amended on 8 March 2007 at [12.43] to [12.68] in which the precise tenure details of the areas in question are footnoted.
296 We have examined the transcript references provided by the Yawuru claimants in relation to each of these areas. Based on that evidence which, in some instances amounted to no more than that the Yawuru claimants walked across the land, we agree with the primary judge that the Yawuru claimants have not established occupation in relation to:
• Area 2593 (UCL 90)• Areas near Broome Road and Chinatown
• Bush areas north of the airport and Tanami Drive subdivision areas
• Area 2576 (UCL 73)
• Areas 2585 (UCL 82) and 2589 (UCL 86)
• Kavite Road subdivision areas
297 The evidence in relation to the Burrgugan or Morgan’s Camp and Minyirr areas is more substantial. Taken alone we would regard the evidence in relation to these areas as establishing a reasonably arguable basis for a finding in favour of occupation. However, in the end, we are not persuaded that the advantage which the primary judge had in visiting the areas and viewing the activities against his overall reaction to the witnesses and impression of the activities of the native title claim group should be disregarded. We would not, albeit with some hesitation, disturb his findings.
298 The remaining areas are described by the Yawuru claimants as small areas at Kennedy Hill. At [117], the primary judge described this land as fourteen areas of walkways and drains in and around Broome. His Honour concluded that occupation had not been established:
... The sparse evidence of usage relates to usage as a walkway by claim group members. It is not a traditional usage and, more importantly, is not distinguishable from a likely similar usage by the public. Accordingly, the requisite occupation has not been established.
299 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.
300 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.
301 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.
302 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.
303 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.
304 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.
305 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
306 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.
307 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.
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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.
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Solicitor for the Appellant/First Cross-Respondent:
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Counsel for the First Respondent/First Cross-Appellant:
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Solicitor for the First Respondent/First Cross-Appellant:
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Counsel for the Second Respondent/ Second Cross-Appellant:
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Mr I Viner QC
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Representative for the Second Respondent/ Second Cross-Appellant by
leave:
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Ms R Hanigan
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Counsel for the Third Respondent:
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Mr P Quinlan
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Solicitor for the Third Respondent:
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Australian Government Solicitor
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Legal Representative for the Sixth Respondent:
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Mr M McKenna
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Solicitor for the Sixth Respondent:
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Hunt & Humphry
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Counsel for the Second Cross-Respondent:
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Mr P Wittkuhn
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Solicitor for the Second Cross-Respondent:
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McLeods
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Date of Hearing:
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Date of Judgment:
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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
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.
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.
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2008/65.html