FEDERAL COURT OF AUSTRALIA

Rubibi Community & Anor v The State of Western Australia & Ors

[2001] FCA 607

NATIVE TITLE – determination of communal native title under the Native Title Act 1993 (Cth) – claim to exclusive possession, occupation, use and enjoyment of an Aboriginal law ground for ceremonial and ritual purposes – whether the claimant community has substantially maintained its traditional connection with the law ground in accordance with traditional laws and customs – capacity of traditional law and customs that form the foundation of native title to evolve, adapt and change – whether entitlement to exclusive native title rights and interests has been extinguished – whether s 47A of the Act requires that any extinguishment be disregarded – Court’s role in resolving intra-communal dispute concerning native title rights and interests

Native Title Act 1993 (Cth) ss 47A, 223(1) and 253

The Queen v Toohey, Ex Parte Meneling Station Proprietary Limited (1982) 158 CLR 327 - cited

Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 - cited

The Wik Peoples v The State of Queensland (1996) 187 CLR 1 - cited

The State of Western Australia v The Commonwealth (1995) 183 CLR 373 - cited

Fejo v Northern Territory of Australia (1998) 195 CLR 96 - cited

Commonwealth of Australia v Yarmirr (2000) 101 FCR 171 – considered

Ward v Western Australia (1998) 159 ALR 483 - cited

Western Australia v Ward (2000) 99 FCR 316 - considered

Members of the Yorta Yorta Aboriginal Community v State of Victoria [2001] FCA 45 - discussed

Yanner v Eaton (1999) 166 ALR 258 - considered

Mason v Tritton (1994) 34 NSWLR 572 – cited

FELIX EDGAR, FRANK SEBASTIAN, PATRICK DODSON AND JOSEPH “NIPPER” ROE ON BEHALF OF THE RUBIBI COMMUNITY AND ROSIE CHARLIE ON BEHALF OF THE LEREGON (LANGANJUN) CLAN OF THE YAWURU TRIBE v THE STATE OF WESTERN AUSTRALIA AND OTHERS

WG 90 AND 91 OF 1998

JUDGE: MERKEL J

DATE: 29 MAY 2001

PLACE: BROOME

THE COURT ORDERS THAT:

1.      By 5.00 pm on Thursday, 31 May 2001 the parties file and serve:

(a)           the determination of native title that they contend gives effect to these reasons for judgment, together with their submissions concerning the manner in which the native title is to be held as required by ss 55-57 of the Native Title Act 1993 (Cth);

(b)          any submissions on the matters which have been directed in these reasons for judgment to be the subject of further submissions.

2.      The further hearing of this matter be adjourned to not before 2.15 pm on Friday, 1 June 2001.

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

REASONS FOR JUDGMENT

Introduction

1                     The traditional relationship between Aborigines and their land has been said to be, above all, a religious relationship (The Queen v Toohey, Ex Parte Meneling Station Proprietary Limited (1982) 158 CLR 327 (“Meneling Station”) at 356 per Brennan J). Professor W.E.H. Stanner, in his Boyer Lectures “After the Dreaming” (delivered in 1968 and reproduced in the book of his essays, White Man Got No Dreaming (1979) at 230), observed that no English words can adequately express the links between an Aboriginal group and their homeland. He stated that to them it is their “hearth, home, the source and locus of life, and everlastingness of spirit”. As such, he suggested that it formed part of the set of constants that gave Aboriginal persons their affiliation with other Aboriginal groups, linked their whole network of relationships and provided the foundation for the complex structure of their social groups. Brennan J and Professor Stanner made their observations in respect of land Aboriginal groups call their “country” that is, their traditional lands.

2                     This case is concerned with a particular part of “country”, a traditional Aboriginal law ground of the Yawuru people (“the claim area”). An Aboriginal law ground is a ceremonial site of great spiritual and cultural significance; it is the place where “men are put through law”. Being “put through law” involves two stages. The first stage concerns the ceremonies by which young men are initiated into manhood. The second stage concerns the ceremonies by which the esoteric knowledge of the law is imparted to initiated men in accordance with Aboriginal law and tradition.

3                     Joseph “Nipper” Roe, a senior law man of the Yawuru people, described the relationship between his “country” and his people as follows.

“The Yawuru people together own those places, as we together own all of Yawuru country. The way I look at it, the relationship between Yawuru people and country is really like a triangle made up of the people, the land, and the law. There is no such thing as a one-sided triangle or a two-sided triangle and there is no top or bottom or beginning or end of a triangle.

In the same way, the people, the land, and the law are three aspects of the same thing. We have a duty to look after them all, and looking after one of them means looking after the other two as well.”

4                     There are competing applications, pursuant to s 13(1) of the Native Title Act 1993 (Cth) (“the NTA”), for a determination of native title in respect of the claim area. The claim area, Reserve 30906, is currently vested by statute in the Aboriginal Lands Trust which holds the land for the “Use and Benefit of Aborigines”. It is approximately 300 acres, and is situated near the township of Broome in Western Australia.

5                     The first applicants, Felix Edgar, Frank Sebastian, Patrick Dodson and Joseph “Nipper” Roe (“the Rubibi applicants”) are senior Yawuru Law Men, and bring the claim on behalf of the Rubibi claimant group. The Rubibi claimant group comprises members of the Aboriginal communities variously described as Yawuru, Djugan and Goolarabooloo. The Rubibi applicants adopted the name Rubibi, which is an Aboriginal “soak” (waterhole) in Broome, and a name generally associated with the Broome Aboriginal community.

6                     The Rubibi applicants claim that the claim area has been used since time immemorial by the members of the Rubibi claimant group and their ancestors to conduct sacred rituals and ceremonies and as a repository for sacred objects. The Rubibi applicants also claim that they are responsible for the claim area as an Aboriginal law ground under the traditional laws and customs of the Rubibi claimant group. Some of the rituals and ceremonies conducted on the claim area involve use of areas outside of it for associated rituals and ceremonies, including singing and dancing. Areas adjoining the claim area are also used for camping, fishing, hunting and the gathering of food and other resources. The Rubibi applicants contend that, in accordance with traditional Aboriginal law and custom, the claim area is to be used exclusively as an Aboriginal law ground.

7                     The Rubibi applicants seek the following determination:

(a)    That it be determined that native title exists in relation to the claim area.

(b)   That it be determined that the native title in relation to the claim area is held by the claim group, being the common law holders set out in Schedule A to the application, who are those Aboriginal people ancestrally connected to the original occupiers of the claim area and who hold in common the body of traditional law and custom governing that area namely:

“the descendants of Nyobing Babere, Chimbere Sitocay, Aloysious ‘Louis’ Dolby, Jack and Pollyanna Mangain, Lija (wife of Phillip O’Brien Taylor), Nyilandin, Joseph Mary, Paddy Djiagween, Lucy Marcella Roe, Mary Minyal, Cecilia Ngangon, Nygingula, Annie Mawunga, Milangka, Lena Charlie, Lisa ‘Lija’ (daughter of Bornal and Gurdan), Minybal Esther Edro, 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, Jinny (‘Jiriny’), Dockan Harry Minybal, Maggie Kangaroo (Kangode/Kanado), Lucy Wararr, Philomena ‘Polly’ Vincent (nee Pedro) and Paddy Roe.”

(c)    That it be determined that the native title held by the claim group confers upon them occupation, use, possession and enjoyment, as against the whole world, of the claim area ‘for ceremonial purposes’.

(d)   That it be determined that the native title of the claim group includes rights of access and the following rights and interests of importance:

(i)                  rights and interests to possess, occupy, use and enjoy the claim area;

(ii)                the right to make decisions about the use and enjoyment of the claim area;

(iii)               the right to conduct ceremonies on the claim area, in accordance with traditional law and customs;

(iv)              the right of access to the claim area for ceremonial purposes;

(v)                the right to control the access of others to the claim area;

(vi)              the right to use and enjoy the resources of the claim area for ceremonial purposes;

(vii)             the right to control the use and enjoyment of others of the resources of the claim area;

(viii)           the right to hunt and gather for ceremonial purposes;

(ix)              the right to manufacture ceremonial artefacts, tools and weapons from the resources of the claim area for ceremonial purposes;

(x)                the right to maintain and protect the claim area, as a sacred ceremonial area under traditional laws and customs; and

(xi)              the right to maintain, protect and prevent the misuse of the cultural knowledge associated with the claim area.

8                     The proposed determination was stated to be subject to the following limitations or restrictions:

A.                   to the extent that any minerals, petroleum or gas within the claim area are wholly owned by the Crown in the right of the Commonwealth or the State of Western Australia, they are not claimed by the applicants;

B.                   the applicants do not make a claim to native title rights and interests which confer possession, occupation, use and enjoyment to the exclusion of all others in respect of any areas in relation to which a previous non-exclusive possession act, as defined in s 23F of the Act, was done in relation to an area, and, either the act was an act attributable to the Commonwealth, or the act was attributable to the State of Western Australia, and a law of that State has made provision as mentioned in s 23I in relation to the act.

9                     The basis for the Rubibi applicants’ claim were the native title rights and interests that were said to flow from:

“…the right to possess, occupy, use and enjoy the claim area pursuant to the traditional laws and customs of the claim group based on the following facts:

(1)               The native title claim group and their ancestors have, since the assertion of British sovereignty possessed, occupied, used and enjoyed the claim area and had an association with it; and,

(2)               Such possession, occupation, use and enjoyment has been pursuant to and possessed under the laws and customs of the Rubibi claimant group, including traditional laws and customs that rights and interests in land and waters vest in members of the native title claim group on the basis of:

(a)               descent from ancestors connected to the area;

(b)               conception in the area;

(c)                birth in the area;

(d)               traditional religious knowledge of and responsibility for the area;

(e)                traditional knowledge of the geography of the area;

(f)                 traditional knowledge of the resources of the area;

(g)               knowledge of and responsibility for the traditional ceremonies of the area.

(3)               Such traditional law and custom has been passed by traditional teaching, through the generations preceding the present generations to the present generations of persons comprising the native title claim group;

(4)               The [Rubibi] claimant group continues to acknowledge and observe those traditional laws and customs;

(5)               The [Rubibi] claimant group by those laws and customs have a connection with the land in respect of which the claim is made.

(6)               The rights and interests are capable of being recognised by the common law of Australia.”

10                  The traditional activities claimed to have been carried on at the claim area were stated to be as follows:

“Members of the [Rubibi] claim group have continuously carried out activities on the land within the area of the claim and have possessed, occupied, used and enjoyed the area, including by way of:

·        accessing the area for ceremonial purposes;

·        conducting and taking part in ceremonies;

·        passing on knowledge of the country and of the traditional laws and customs of the country, in accordance with custom and tradition;

·        hunting and gathering for ceremonial purposes;

·        taking and using the resources of the area, including forest products, water, and minerals and other resources from the land and waters for ceremonial purposes;

·        manufacturing tools and weapons from the resources of the area for ceremonial purposes;

·        managing, conserving and caring for the land and controlling access by others to the land and waters.”

11                  The second applicants (“the Leregon applicants”) also claim native title rights and interests in respect of the claim area. Leregon is the name of a soak near the claim area. Although the Leregon applicants do not dispute that parts of the claim area have been used as a traditional law ground, they contend that the native title rights and interests claimed by the Rubibi applicants should only be granted in respect of the specific sites within the claim area at which traditional ceremonies are conducted. The Leregon applicants stated that they do not wish to make a claim “over land where men’s law business is carried on”. It was common ground between the claimant groups that the Leregon applicants, as members of the Yawuru people, were entitled to the benefit of the native title determination sought by the Rubibi claimant group.

12                  In the course of the hearing it became clear that, rather than making an independent claim of native title as such, the Leregon applicants were seeking to protect certain housing on, and associated rights of access to, the claim area. The housing consisted of Colin Lee’s house (near the south east boundary), Kiddo (who was also referred to in evidence as “Kitto”) Taylor’s house (near the east boundary) and a caravan where Donny Taylor resides (also near the east boundary) (“the Leregon structures”). The Leregon applicants claim that each of those persons is a member of the Leregon clan. The Leregon applicants contend that, save for any specific ceremonial sites established to be within the claim area, the area should otherwise be reserved for the general use and benefit of Aboriginal persons.

13                  The two applications for native title were contested by the State of Western Australia (“the State”). The State put the Rubibi and the Leregon applicants to their proof in relation to their respective claims for a determination of native title. Ultimately, the State contended that the claimant groups had not discharged the onus imposed upon them to establish that:

·        at the time of sovereignty, being 1829, there was an identifiable community of Aboriginal people present upon, occupying or using the claim area with whom either of the claimant groups have a substantial degree of ancestral connection;

·        there has been a maintenance of any community’s connection with the claim area since sovereignty by the acknowledgment and observance, so far as practicable, of the community’s traditional laws and customs;

·        the claimant groups are an identifiable community which continue to acknowledge and observe the traditional laws and customs under which the native title rights claimed were possessed by their ancestral groups at sovereignty.

14                  Although the State did not dispute evidence that traditional ceremonies have been conducted in or near the claim area, it contends that it has not been established that the claim area has been used as an Aboriginal law ground by the claimant groups or their ancestors at and since 1829.

15                  The State also contended that the reservation of the claim area as a public reserve extinguished any native title right to exclusive possession of that area. It did not, however, contend that native title to the claim area cannot exist because of the grant of inconsistent rights to third parties or because native title had otherwise been extinguished.

16                  The Rubibi applicants and the State were represented by counsel. Leave was granted under s 85 of the NTA for the Leregon applicants to be represented by Mr David Johnson, who does not have a legal background.

The Law

17                  The present case is concerned with claims to communal native title. The general principles applicable to such claims are now well established. Native title was first recognised by the common law in Australia in Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 (“Mabo”). Native title has its origins in, and is given its content by, the traditional laws acknowledged and the traditional customs observed by the indigenous inhabitants of a particular area. The nature and incidents of native title, which are derived from the traditional connection between indigenous people and their land, are to be ascertained as a matter of fact in each case by reference to the traditional laws and customs observed by the indigenous inhabitants of that area. The general principles laid down in Mabo have since been adopted in subsequent cases (see The Wik Peoples v The State of Queensland (1996) 187 CLR 1; The State of Western Australia v The Commonwealth (1995) 183 CLR 373, and Fejo v Northern Territory of Australia (1998) 195 CLR 96) as well as by the NTA, which was enacted to recognise and protect native title recognised by the common law: ss 3, 10 and 223.

18                  Section 223(1) of the NTA defines native title as follows:

“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.”

19                  In Commonwealth of Australia v Yarmirr (2000) 101 FCR 171 (the “Croker Island case”) Beaumont and von Doussa JJ at [54] accepted that s 223(1) of the NTA should be read against the background of the common law as declared by the High Court and with “an understanding of the novel legal and administrative problems involved in the statutory recognition of native title”.

20                  Counsel for the Rubibi applicants and the State accepted at the hearing that, for the purposes of the present case, the matters required to be considered in order to establish a claim to communal native title in a matter arising under the NTA were as stated by me at [360] in the Croker Island case:

“(1) The Court must ascertain and define the content, nature and incidents of the native title and of the native title rights and interests in land that are proved to exist at the date upon which the Crown acquired radical title or sovereignty in respect of a particular area of land or waters. The native title is to be ascertained by reference to the traditional connection between the indigenous group (‘the relevant community’) and the land or waters at that date. That connection will be derived from the occupation, presence upon or use of the land or waters in accordance with traditional laws acknowledged and the traditional customs observed by the relevant community. As title is to be ascertained by reference to the traditional laws and customs of the relevant community it is immaterial whether the common law might classify the native title as proprietary, usufructuary or otherwise. The native title, and the rights and interests, so ascertained constitute the native title, possessed by the relevant community, which burdened the Crown’s radical title.

(2) The relevant community, and the area of land or waters in respect of which native title exists, are to be ascertained and identified as far as is possible or practicable by reference to the traditional law and customs of the indigenous persons possessing native title.

(3) Native title only inures for the benefit of the relevant community and descendants of the relevant community. As far as is practicable, descent is to be ascertained according to the laws and customs of the relevant community. Descent from ancestors, who were members of that community, is not to be established by a narrow or technical approach to that issue.

(4) Native title, and the native title rights and interests in land or waters, possessed by the relevant community will remain in existence if the general nature of the traditional connection (upon which the title or rights and interests were founded), between the community and the area of land or waters the subject of the native title, remains. That will occur where the community, or its descendants, have continued to acknowledge the laws and, so far as practicable, observe the customs based on its traditions whereby the traditional connection with the land has been substantially maintained. The title will cease to exist upon the death of the last of the descendants of the relevant community.

(5) Any native title proved to exist may be extinguished by operation of law. Thus, a legislative or executive act that expresses or exhibits a clear and plain intention to extinguish native title, or a native title right or interest, will extinguish it. However, such an intention is not revealed by a law which merely regulates the enjoyment of native title or which creates a regime of control that is consistent with the continued enjoyment of native title.”

21                  It was common ground that the acquisition of British sovereignty over Western Australia occurred in 1829: see Western Australia v Ward (2000) 99 FCR 316 at [40] per Beaumont and von Doussa JJ.

22                  Since the hearing of the present matter a Full Court handed down its decision in Members of the Yorta Yorta Aboriginal Community v State of Victoria [2001] FCA 45 (“the Yorta Yorta case”). In that case the Court was concerned with whether the traditional connection with land, relied upon to found communal native title, had ceased after the acquisition of sovereignty with the consequence that the native title claimed had been extinguished.

23                  Branson and Katz JJ at [108], [139]-[145] and [149]-[150] stated that under s 223(1) of the NTA it must be established that:

·        the communal native title rights and interests claimed are possessed under traditional laws and customs, as currently acknowledged and observed rather than that those rights and interests have been possessed continuously from the date of sovereignty;

·        the relevant community has continuously, since the acquisition of sovereignty, been an identifiable community the members of which, under its traditional laws observed and traditional customs practised, possessed communal native title rights and interests in the relevant land;

·        the relevant community has not ceased to acknowledge or observe the traditional laws and customs, the acknowledgment and observance of which provided the connection with land that is the foundation of native title.

24                  Their Honours summarised the criteria to be met under s 223(1) at [168]:

“(a) the native title rights and interests are possessed under traditional laws currently acknowledged and traditional customs currently observed by the community;

(b)              the indigenous claimants by those laws and customs have, as members of the community, a current connection with the land or waters;

(c)               the native title rights and interest are not inconsistent with the basic precepts of the common law (ie by reason of their repugnancy to natural justice, equity and good conscience – Mabo [No 2] per Brennan J at 61);

(d)              the native title claimed has not at any time since the acquisition of sovereignty by the Crown been extinguished whether by –

(i)                positive exercise of sovereign power appropriate to achieve that result;

(ii) by the cessation of the acknowledgment and observance by the community of the traditional laws and customs upon which the native title had been founded; or

(iii) by a loss of connection with the land or waters by the relevant community. Such a loss of connection will be the necessary result of the disappearance of the community as a traditional indigenous community.”

25                 Accordingly, their Honours stated (at [131]-[139] and [176]) that a claimant need only establish the existence of native title, rather than its content, nature and incidents, at the date of sovereignty. Branson and Katz JJ stated that the content, nature and incidents of that native title are capable of changing over time as a consequence of changes in the observance and exercise of the traditional laws and customs that provide the title.

26                  Black CJ stated at [49]:

“It can be seen, therefore, that in determining issues concerning the existence and content of native title rights and interests, the considerations to be borne in mind include the following:

·        The definition of native title in s 223 of the Native Title Act directs attention to the present.

·        The laws presently acknowledged and the customs presently observed must be shown to be ‘traditional’ but laws and customs that are adapted or evolved may still be ‘traditional’. They will be ‘traditional’ if, in their essence, they still reflect a continuity of tradition and are rooted in the laws and customs that provided the foundation for the native title that burdened the radical title acquired by the Crown.

·        Native title rights and interests may continue to exist notwithstanding profound impacts upon and changes to Aboriginal society or to a particular community.

·        Native title rights and interests may continue to exist notwithstanding the dispossession of traditional lands.

·        Native title rights and interests may persist despite the cessation of a traditional – in the sense of pre-contact – lifestyle.”

27                  In the present case the Rubibi applicants have put their claim on the basis that the native title rights and interests and the traditional laws and customs upon which they are founded have been substantially maintained from at least the date of sovereignty until the present time.

28                 The sole basis for the native title claim of the Rubibi applicants is that the claim area is a sacred Aboriginal law ground. In Yanner v Eaton (1999) 166 ALR 258. Gleeson CJ, Gaudron, Kirby and Hayne JJ at [37]-[38], after citing the observation of Brennan J in Meneling Station that the traditional connection was “primarily a spiritual affair rather than a bundle of rights”, stated:

“Native title rights and interests must be understood as what has been called ‘a perception of socially constituted fact’ as well as ‘comprising various assortments of artificially defined jural right’. And an important aspect of the socially constituted fact of native title rights and interests that is recognised by the common law is the spiritual, cultural and social connection with the land.”

29                  Gummow J stated at [72]:

“Native title is not treated by the common law as a unitary concept. The heterogeneous laws and customs of Australia’s indigenous peoples, the Aboriginals and Torres Strait Islanders, provide its content. It is the relationship between a community of indigenous people and the land, defined by reference to that community’s traditional laws and customs, which is the bridgehead to the common law.”

30                  The above passages emphasise that the native title rights and interests recognised and protected by the common law and the NTA are to find their expression and content from the spiritual, cultural and social connection to the land from which they are derived.

31                  The joint judgment in Yanner v Eaton cited two articles (K Gray and S Gray, “The Idea of Property in Land” in S Bright and J Dewar (eds) Land Law, Themes and Perspectives (1998) (“Land Law”) and K Gray, “Property in Thin Air” [1991] Cambridge Law Journal 252 at 299) which inter alia, make the point that while one common law conception of property law is as “a perception of socially constituted fact” another competing assessment of property law is “as composite bundles of incorporeal right” (Land Law at 27). It is suggested that “[f]ar from being a monolithic notion of standard content and invariable intensity, ‘property’…turns out to have an almost infinitely gradeable quality” (Land Law at 16). In “Property in Thin Air” Gray observes (at 299) that “[m]uch of our false thinking about property stems from the residual perception that ‘property’ is itself a thing or resource rather than a legally endorsed concentration of power over things and resources.”.

32                  The passages cited above suggest that, in determining the existence of native title and in defining its content, a flexible and broad approach should be taken to ensure that the native title recognised truly reflects the claimant group’s traditional connection to its land. It would be erroneous to endeavour to give content to that connection, and the rights and interests that flow from it, simply by reference to some supposed or analogous common law counterpart to those rights and interests.

33                  The parties were in dispute on two inter-related, but fundamental, issues of fact. The first was whether the Rubibi applicants have established that the claim area was used as a traditional Aboriginal law ground at and since 1829. The second was whether that use was by an identifiable community from which the Rubibi claimant group is descended.

34                  Although the Aboriginal witnesses called by the Rubibi applicants were cross-examined, ultimately the dispute related to the inferences to be drawn from the primary facts stated by them, which were largely not in dispute. Similarly, there was little dispute as to the primary facts relied upon by the expert witnesses. Rather, the dispute related to the inferences to be drawn from those facts and the conclusions to be derived from those inferences.

Use of the claim area

35                  The claim area and its surrounds (“the broader Kunin area”), which are on the eastern bank of Dampier Creek, are known by the non-Aboriginal community as Fishermen’s Bend. The broader Kunin area is known by the Aboriginal community as Kunin, which is the name of a soak near Dampier Creek on the Broome side of the broader Fishermen’s Bend area. Kunin is also used by Yawuru people to refer, in the narrower sense, to the law ground within Reserve 30906 and to the immediately adjoining areas of ceremonial significance. The references to Kunin in these reasons for judgment will be to the law ground within Reserve 30906. Save for the Leregon structures, a shed for the storing of ceremonial objects and some unmade tracks, Kunin is otherwise undeveloped bush.

36                  The Rubibi applicants and the State adduced evidence from two historians, Dr Fiona Skyring and Mr Chris Stronach respectively.

37                  Dr Skyring explained that the historical evidence should be understood to have arisen in a context where, until recently, the records resulting from contact between Aboriginal and non-Aboriginal people in the area around Broome were created entirely by non-Aboriginal observers, participants and chroniclers. She stated that the presence of Aboriginal people and their activities at any particular location around Broome was recorded by those observers in a manner appropriate to the particular objective or context of the person or agency creating the record. Further, according to the evidence, the detail of the “men’s business” conducted at Kunin was highly secret and was only to be disclosed to Aboriginal men who had been “put through law”. In the circumstances outlined by Dr Skyring it is not surprising that the written historical records contain only scant reference to ceremonial activities and rituals in or around the claim area.

38                  The two historians were not in dispute about the few historical records which did exist although, in some instances, they gave differing interpretations of their significance. It was common ground that:

·        Fishermen’s Bend and the surrounding area was populated by Aboriginal people well before the acquisition of sovereignty in 1829;

·        when Broome was gazetted as a town in November 1883 it consisted of little more than a few makeshift camps of European pearlers and Asian men who crewed the pearling luggers;

·        by the late 1890s Broome had become a busy pearling port with Aboriginal people continuing to occupy the “bush” areas around the town, including the area around Fishermen’s Bend;

·        the area remained a popular meeting and camping place for Aboriginal people during the 19^th, and a large part of the 20^th, Century;

·        the activities participated in by Aboriginal people at Fishermen’s Bend included traditional ceremonies;

·        the claim area was within Reserve 631, which was set aside for “public purposes” in 1883 and became the Broome Common in 1905.

39                  The main area of dispute related to whether the evidence was sufficiently specific to establish that the claim area was used as an Aboriginal law ground prior to 1947, when sacred objects were transferred from the Yawuru law ground at Thangoo to Kunin.

40                  A number of historical records are relied upon by the Rubibi applicants to establish the use of Kunin as a law ground prior to 1947.

41                  First were some notes by Ada Peggs, one of the first European settlers in Broome, written in 1898-1901. She related how the local Aboriginal people invited her and her husband to attend “Kobba Kobba” or corroboree (different names for traditional ceremonies) a long way into the bush, but a place still close enough to the mangroves for the sandflies to be a problem. Peggs recalled how they watched women, children and men dancing and singing, and described the men as being ‘in full war paint’. After a part of the performance, Peggs records she was told “White womanee go away now, he no good”. The Rubibi applicants contended that the description of the ceremony given by Peggs, as being divided into two parts, one which was open and the other restricted, accords with the description of ceremonies performed at Kunin.

42                  Second, in 1917 local authorities suggested that the areas in and around Broome, from which Aborigines were prohibited from entering unless in employment, be extended to include Fishermen’s Bend. The Police Inspector’s response to the suggestion revealed that the area was a popular camping place for Aboriginal people and a place to which Aboriginal people travelled for ceremonies.

43                  Third, a subsequent report in 1928 from the local Inspector of Aborigines to the Chief Protector referred to “Cobba Cobbas” as one of the few “immemorial” pleasures left to the Aboriginal people around Broome.

44                  Fourth, in a report of a Broome Court proceeding in 1928, evidence was given by Aboriginal women charged with prostitution to the effect that they avoided going near the “Cobba Cobba ground” near Fishermen’s Bend. The implication was said to be that the “Cobba Cobba ground” was Kunin and that the women kept away from it as they were aware that they were not to go there as it was a place for men’s ceremony.

45                  Fifth, other records disclose that in 1953 approximately 20 Aboriginal persons from areas a considerable distance from Broome were seeking to obtain a truck to take them to Broome for “Cobba-cobba”.

46                  While the above reports are scant, and only a few are specific about the location of a ‘cobba-cobba’ ground, they lend some support to the Rubibi applicants’ contention that Fishermen’s Bend had been used as a traditional ceremonial ground since the early 1900s. Mr Stronach, the State’s historian, agreed that “[the] records show that there has been ceremonial activity in the general Fisherman’s Bend area on an intermittent basis from at least 1917”.

47                  Significantly, evidence has not been led of any sites other than Kunin in the Fishermen’s Bend area where the ceremonial activities referred to are likely to have taken place. The inference, therefore, is that the ceremonial activity that did take place is most likely to have taken place at Kunin.

48                  The Rubibi applicants and the State also adduced expert anthropological evidence from Dr Patrick Sullivan and Dr Erich Kolig respectively. Both experts surveyed the existing ethnographic literature in relation to the Broome area and concluded that the broader Kunin area, variously referred to as Kanin, Kunin, Kanan, Karnin and Ganen, had been used for residential, as well as traditional religious (including initiation), purposes for some time and contained sites considered by the local Aboriginal community to be sacred and of significance to their traditional laws and customs.

49                  Dr Sullivan drew on the earliest recorded ethnographic notes made in respect of the Broome area, being the notes of Daisy Bates, who was in the area from the 1890s, as well as certain writings of Peggs, referred to above. Dr Sullivan claimed that references by those persons to places where traditional ceremonies were carried out by Aboriginal people near Broome were likely to be references to ceremonies carried out at Kunin. In particular, Dr Sullivan claimed that in her writings in 1907 Daisy Bates referred to Kunin and used a word which remains in current use by senior Yawuru law men to refer to the seclusion of initiates at a certain stage of the initiation ceremony during which young men are circumcised and “put through law”. Dr Sullivan said that these records supported his contention that Kunin was a traditional Aboriginal law ground at that time.

50                  Dr Kolig observed that the Aboriginal name Kunin, and the various pronunciations and spellings of that name, was used by Aboriginal people to refer to the wider geographic area used for camping and resource gathering at Fishermen’s Bend as well as to the smaller ceremonial ground within Reserve 30906. He contended that it was unclear which specific location was being referred to in the references relied upon by Dr Sullivan.

51                  Dr Kolig also referred to material that demonstrated that, particularly after the Second World War, after Aboriginal people were forced to leave a number of stations, such as Thangoo, at which they had resided for some time they tended to camp at or around Broome, including Fishermen’s Bend. Dr Kolig argued that it is quite possible that Kunin was only established as a ceremonial site after sacred objects had been moved there from the Thangoo law ground in 1947. He relied on a comprehensively researched thesis of K Hosokawa written in 1991. The thesis, which was on the Yawuru language of the West Kimberley, suggested that the male initiation ceremonial site at Thangoo “shifted several times” until it was finally located in the Fishermen’s Bend area. Dr Kolig said that it was only clear from the anthropological evidence that Kunin was a significant Aboriginal ceremonial and initiation site at some time after the shifting of the sacred objects, probably in the 1950s, and that there was little to suggest that Kunin had been used as a ceremonial ground prior to 1947.

52                  While there is some substance in Dr Kolig’s criticisms of the conclusions drawn by Dr Sullivan, ultimately the material must be weighed in the context of the totality of the historical and ethnographic records, as well as the oral history provided by the local community.

53                  The final category of evidence that is logically probative of the role of the law ground in accordance with Aboriginal law and tradition is the oral testimony of witnesses called by the Rubibi applicants. Before turning to that evidence it is appropriate to re-iterate certain observations I made in the Croker Island case at [86] to [87]:

“Traditionally, Anglo-Australian culture has placed greater value on written material than on oral accounts. Oral accounts are often considered to be subjective in comparison to written records’ assumed objectivity and the spoken word is understood as being susceptible to modification over time as it is retold from one person to another: see Gray J, ‘Saying It Like It Is: Oral Traditions, Legal Systems and Records’, Archives and Manuscripts 26:2 (1998) 248. In comparison, the written word tends to become immutable once recorded, less vulnerable to change and strengthened each time it is relied upon as authority.

Thus, in Delgammukw the trial judge treated oral history as only confirmatory evidence. That led Lamer CJC to observe (at 236), in the Canadian context, that such an approach would have the consequence that:

…the oral histories of Aboriginal peoples would be consistently and systematically undervalued by the Canadian legal system.

As Lamer CJC said (at 231) courts hearing indigenous peoples right litigation have had to ‘come to terms with the oral histories of Aboriginal societies’. See also Mason v Tritton at 588-9 per Kirby J.”

54                  See also the Yorta Yorta case at [56]-[57] per Black CJ.

55                  A consistent theme in the evidence of the senior male and female Yawuru witnesses, and of the senior law men of other communities sharing the same law was that their elders had informed them that Kunin was a sacred place and that that accorded with their own experience. A number of witnesses had been “put through the law” at Kunin.

56                  For example, the senior Yawuru Law Man, Felix Edgar, who is now about 80 years old, remembers visiting Kunin (where he was put through law) during the war and being made aware that he had not been allowed to go there as a child as it was a law ground. Frank Sebastian, who was put through first stage law at Kunin in the early 1950s, remembers viewing corroborees at Kunin in the 1950s and being told by his grandmother and mother to stay away from the law ground because it was a dangerous place. Francis Djiagween participated in ceremonies at Kunin in the 1960s and remembers that, as a young boy in the 1950s, he was told by the “old people” that Kunin was a law ground. Joseph “Nipper” Roe, who was born in the early 1940s, was told by his father (who was “the law boss for Yawuru”) and by other old people that there were law ceremonies at Kunin before he was born. Steven Possum, a senior Karajarri lawman, recalls visiting Kunin with his father, who was attending to law business as well as a gumbali ceremony (where two people are given the same name) for his brother, when he was a young boy before the war. He stated that he was told by his father not to go walking around the ceremony area but to stay “in a public side”. He stated that his father had told him that he had been to Kunin himself for law business when he was a young man. This was most likely in the 1920s, given that his father was a married man with grown children before World War II. Peter Clancy, a Mangala law man, gave evidence that he had been to law ceremonies at Kunin and that the first time he came to Kunin was before he was married, which was a long time ago. He also said that he had been told by the old people at around the time of the war that Kunin was a law ground. The evidence to which I have referred was not the subject of any serious challenge.

57                  The history of Reserve 30906 also supports the Rubibi applicant’s case on use. The genesis of the Reserve appears to have been an offer by the Western Australian Museum to donate secure storage sheds for ritual objects to Aboriginal groups in the Kimberley region. As a result of the offer, on 12 December 1967 the Superintendent of the Northern Division of the Department of Native Welfare wrote to the Commissioner of Native Welfare indicating that the District Officer in Broome had been requested to confer with “Broome tribal elders” to assist in choosing a location for the storage sheds.

58                  On 9 January 1968 the District Officer in Broome reported back to the Superintendent:

“The Broome elders are most keen to have a repository erected on the Broome [restricted word] site. This has posed a slight problem as this is ‘Shire Common Land’. The Shire president has been spoken to regarding this and he has verbally indicated that every assistance can be expected from the Shire. It is felt that the area concerned should be excised as a reserve to prevent public access. Can you advise if this is possible and how long the action would take. The area is quite close to Broome in the Fishermens Bend area but due to lack of suitable maps it is not possible to pinpoint the site. Areal (sic) photographs will be taken to assist and will be forwarded shortly.”

59                  The restricted word omitted from the letter was a reference to the second stage ceremony by which Aboriginal men are put through law. The ceremony, which is secret and sacred, forms an integral part of the process by which senior law men acquire their status in a traditional Aboriginal community. It is also the ceremony which, according to the oral history of Aboriginal witnesses, has been conducted at Kunin since time immemorial.

60                  The significance of the 1968 request by the “Broome elders” is threefold. First, the Broome elders obviously had personal knowledge of the site, not just for the storing of objects, but as a site for the conduct of the secret and sacred second stage ceremonies prescribed by Aboriginal law. There is no evidence of there having been any other site for that ceremony in or around the Broome area. Second, even if Hosokawa’s suggestion that first stage initiation ceremonies were transferred to Fishermen’s Bend after 1947 were accepted, that would not preclude the use of that location as a ceremonial site for the second stage initiation ceremony. I would add that because of the highly secret nature of the second stage ceremony, during which important and esoteric aspects of traditional law are revealed, it is not surprising that little appears to have been written or disclosed about its occurrence at Kunin. Third, this was the first recorded occasion on which Aboriginal elders had been consulted by non-Aboriginal persons in relation to the use of Kunin as a traditional law ground, as well as the first occasion on which any serious consideration was given to that topic by non-Aboriginal people.

61                  By a letter dated 17 September 1969 the Shire expressed support for the reserve proposal stating that it:

“has no objection to the excision of a portion of the Broome Common approximately seven (7) miles east of Broome, to be used by the aborigines for ceremonial purposes. It would be appreciated if you advise the area required once a survey has been done.”

62                  In the result the Shire of Broome, the Department of Native Welfare and the Western Australian Museum agreed that Reserve 30906 be excised from the Broome common reserve as a “Ceremonial Site”. The site was to contain two stores for sacred objects, which included objects used for the particular ritual identified in the notes of Daisy Bates. Although the initial proposal provided for the excision of an area of one square mile, the area reserved was slightly under half a square mile.

63                  By notice published in the WA Government Gazette dated 2 July 1971, the Governor in Council set apart Public Reserve No 30906 for the purpose of a “Ceremonial Site”. By notice published in the same Gazette, Reserve 30906 was vested as a ceremonial site in the Minister for Native Welfare. On 23 March 1973 the Reserve was vested in the Aboriginal Lands Trust. By a notice published in the WA Government Gazette dated 29 June 1973 the purpose of the Reserve was changed to “Use and Benefit of Aborigines”. The latter two changes, which accorded with Government policy at the time, related to a large number of Aboriginal reserves and did not reflect any specific policy of the Government in relation to Kunin.

64                  The inference I draw from the events that led to the creation of Reserve 30906 is that the Broome elders, the Broome Shire, the Museum and the Department of Native Affairs were in agreement that the site reserved was a traditional and sacred ceremonial site from which the public should be excluded. While that conclusion does not establish the antiquity of the site, it is likely that its protection was provided for on the basis that the site’s traditional status was of longstanding, rather than of recent, origin.

65                  In 1975 the Aboriginal Lands Trust advised the Department of Lands and Surveys that a Broome Aboriginal group had applied for an extension of the Reserve on the basis that the group claimed “the present reserve is not adequate enough to carry out their sacred ceremonies and initiations”. In addition, the group indicated they would like access to the coast for fishing and trapping oysters. Although the group was not successful in its request for the extension of the Reserve, the authorities treated the request as bona fide. The view that the Reserve did not embrace all the areas required for the ceremonies carried out by Aboriginal people is consistent with the evidence given at the hearing that the Reserve was a minimum area required for traditional ceremonies.

66                  Since the mid 1970s there has been considerable acrimony within the Aboriginal community in Broome in relation to the Reserve. Members of the Lee family, who are members of the Leregon clan, sought a lease in relation to the Reserve which involved, inter alia, a proposal for a mangrove crab farming venture. Although in 1979 the Aboriginal Lands Trust resolved to grant a lease to members of the family, the proposal met substantial opposition from other Aboriginal groups in Broome and did not proceed. It appears that senior Aboriginal elders strongly opposed the grant of the lease on the basis that it was not consistent with Aboriginal law. The dispute led to the commencement of Supreme Court proceedings to prevent the lease being granted.

67                  From 1980 onwards the Leregon structures were constructed or placed on the Reserve, although the legal basis for that conduct is far from clear.

68                  Over the ensuing 20 years the Aboriginal Lands Trust endeavoured to resolve the ongoing dispute in relation to the Leregon structures. In 1990 the Trust resolved to lease the Reserve to the Yawuru Aboriginal Corporation, on the condition that access was granted for cultural purposes and that a sub-lease be granted to Colin Lee for his residence. Although that resolution was said to flow from a meeting of traditional land owners in Broome in 1989, the lease was not issued due to continuing conflict about it among local Aboriginal groups.

69                  In the late 1980s a proposal for a crocodile breeding and farming facility in the proximity of, but away from, the Reserve was strongly opposed by the senior Yawuru law men for the Dampier Creek and Fishermen’s Bend area on the ground that it would jeopardise sacred activities at the Reserve. The proposal for a crocodile farm did not proceed.

70                  Conflict within the community over the use of the Reserve led to considerable strains on ceremonial life at the Reserve. Significant sacred objects were stolen from their repository leading to a successful prosecution of Colin Lee in relation to unlawful possession of those objects. Evidence was given by Patrick Dodson that the presence upon the Reserve of members of the Lee family and other uninitiated persons severely interfered with the conduct of traditional ceremonies at the Reserve. Notwithstanding these problems, in 1990 four young men were put through the first stage of initiation, which involved the conduct of traditional Yawuru ceremonies which have been carried out since the earliest times. The previous first stage ceremonies had been conducted at Kunin in 1980.

71                  The most recent ceremony held at Kunin was in November 1994 when the then senior Yawuru law man participated in a ceremony in which two of the Rubibi applicants, Patrick Dodson and Joseph “Nipper” Roe, were “put through law” in a second stage ceremony. The ceremony appeared to enable the devolution upon those applicants, together with others, of custodianship for Kunin. The senior law man disappeared shortly afterwards.

72                  Colin Lee was called as a witness by the Leregon applicants. He claimed that about 20 years ago he had heard senior law men, including Felix Edgar and Frank Sebastian, say that the Reserve was not sacred and that the only place of significance was a relatively small area around the sheds which stored the sacred objects. He claimed that the rest of the Reserve was “open ground” and that was why the law men had approved of him building his house on the corner of the Reserve. When cross-examined Colin Lee conceded that the comments that the Reserve was not sacred had not been made to him directly but had been made to the Chairman of the Aboriginal Land Trust, although he did claim that he had heard the statements being made. In response to Colin Lee’s evidence the Rubibi applicants recalled Felix Edgar and Frank Sebastian who denied saying that the Reserve was not sacred and denied ever giving permission for the building of the house on the corner of the block.

73                  Colin Lee’s evidence needs to be understood in the context of the long standing conflict in the community about the manner in which the Reserve might be used and the ample scope for varying interpretations, understandings and recollections of what might have been said at meetings up to 20 years ago. Further, as explained earlier, references in conversation to Kunin might be taken to be references to the Reserve or to the Reserve and the surrounding camping areas. I have not found it necessary to resolve the credit issues involved in the differing versions of what might have been said so long ago as, having regard to the other evidence, I am not persuaded that the evidence given by Colin Lee leads to the conclusion for which he contends, namely that the Reserve is not a sacred site.

74                  The Leregon applicants and the State also relied upon certain Aboriginal Lands Trust minutes and other documents in relation to the dispute as evidence that senior law men and, in particular, Frank Sebastian, had acknowledged during the 1980s that Kunin was not a sacred law ground. The references relied upon are ambivalent but, more importantly, are not acknowledged or contained in documents signed by the persons concerned. In my view they do not warrant the conclusion that Kunin is not a sacred site.

75                  The State, in the course of its submissions, and Dr Kolig, in the course of his evidence, accepted the bona fides of the evidence given by the various Aboriginal witnesses called by the Rubibi applicants, but suggested that there may be an element of self deception about their view of the historical use of Kunin as a law ground. It was contended that the only reliable and cogent evidence of the use of Kunin as an Aboriginal law ground related to its use as a law ground since 1947, after the transfer of sacred objects from the Thangoo law ground to Kunin. Particular significance was attached to the transfer as it was submitted that prior to 1947 Thangoo, rather than Kunin, was the law ground used by the Yawuru people to put their men through the law.

76                  When the individual items of historical, anthropological and oral evidence are considered in isolation there might be some force in the State’s submission that it is far from clear that Kunin has been used as a traditional law ground since, at least, the 1890s and the early 1900s. I have concluded, however, that the evidence in each category supports the view of the historical and traditional use of Kunin contended for by the Rubibi applicants. I also find the unchallenged evidence of the Rubibi applicants’ witnesses personal experience (including what they were told by their parents and elders) of Kunin as a sacred law place and one which is dangerous to children to be inconsistent with the State’s contention that Kunin only became a ceremonial site after 1947.

77                  It is also significant that in the late 1960s, on the first occasion on which any serious consideration was given by non Aboriginal persons to whether Kunin was a traditional ceremonial site, the “Broome elders”, the Department of Native Affairs, the Western Australian Museum and the Shire of Broome (who could all be expected to have some background knowledge of the traditional use and significance of Kunin) were in agreement that the Reserve should be established, not just as a repository for sacred objects, but as a traditional ceremonial site from which the public were to be excluded.

78                  Having regard to the foregoing matters I am satisfied, on the balance of probabilities, that the evidence establishes that Aboriginal people were living in proximity to the claim area since, at least, the 1890s and the early 1900s and that those people lived in a society that observed traditional laws and customs. I am also satisfied, on the balance of probabilities, that one of the traditional laws and customs observed by that society was the use of Kunin as a traditional Aboriginal law ground.

79                  Of course, the earliest evidence probative of any such usage was in the late 1890s and early 1900s. However, as the dislocation of Aboriginal communities only occurred after the Broome area was settled by non-Aborigines late in the 19^th century, the obvious inference to be drawn from the traditional usage established by the evidence is that it was a continuation of prior use of Kunin as an Aboriginal law ground throughout the 19^th century. Accordingly, I am satisfied that, as at the date of sovereignty, being 1829, Kunin was used as an Aboriginal law ground in accordance with the Aboriginal law and tradition which, as I later explain, were believed by Aboriginal people to have been laid down in the Bugarrigarra (referred to colloquially, but probably somewhat inadequately and inaccurately, as “the Dreamtime”).

80                  An issue was also raised by the State as to whether Kunin had, as a matter of fact, fallen into disuse as a law ground with the consequence that any traditional connection with Kunin had not been substantially maintained. The last first stage initiation ceremonies were held at Kunin in 1990 and the last second stage ceremonies, which were for Patrick Dodson and Joseph “Nipper” Roe, were held there in 1994. Although ceremonies have not been performed at Kunin since 1994, Mr Dodson stated that for the Yawuru people the role of the law ground extends beyond the ceremonies that are performed there. The point made by Mr Dodson is that as the law “goes on”, the existence of Kunin as an Aboriginal law ground is not limited to its physical use and occupation during ceremonies from time to time. He stated that the sacred objects, which continue to be located at Kunin, have their own special significance under Aboriginal law. Further, because of the importance of the law ground, Mr Dodson stated that he and the other senior law men travel there from time to time to keep “it safe” and to protect “what is in the ground”. The senior Yawuru law men regarded it as their continuing obligation to maintain and protect the law ground from intrusion by persons not authorised under Aboriginal law to be there and to enable men to be put through the law at Kunin in the future. As a consequence, the senior law men have continued to oppose any use of Kunin or any development of the surrounding areas that might impede the continued use of Kunin as a traditional law ground.

81                  Further, the alleged lack of continuity of usage must be considered in the context of the traditional purposes for which Kunin is used. In an endeavour to explain these purposes Mr Dodson said:

“PATRICK DODSON JAGUN: Purpose is a funny word. Kunin is there from the Bugarrigarra. His purpose is set, his purpose is set, ngirpiri place for holding objects. That’s there, those objects are there. It’s used when we go there, us four or five men, if we go there or we bring this lot. They can’t go onto that ground unless we give them permission to come on. They can’t just walk over. They come through us. Even though they bosses, they have respect for Yawuru.

MR BELL: We know because you’ve told us that the last law men to be put through or the last men to be put through the law, more accurately, are you and Nipper which happened in 1994. Does the fact that no law men since then have yet been through the law mean it is not in use?

PATRICK DODSON JAGUN: No, it doesn’t mean that at all.

MR BELL: Why not?

PATRICK DODSON JAGUN: Because the law is in the land there. The law is in the ground. Wherever you travel around here, anywhere on the country, you think of the law. The law governs you, by your behaviour, what you do, where you go, how you behave even if I go to some other country, some other place like Nygina country or Karajarri country, Nyangumarta country, I got to worry about that place.

MR BELL: Yes.

PATRICK DODSON JAGUN: It’s use for the ceremony is still – it’s physical use is restricted because of where those people live. It’s restricted because when you lose a senior man like our boss, the man we lost in Derby somewhere, the ceremony side of life slows down for a while, out of respect for those people, senior people. It’s so for any of these people, if we lose our senior people in one place.

MR BELL: Pointing to the men from the other groups.

PATRICK DODSON JAGUN: Karajarri, Nygina, Mangala, Karajarri, true for them. And so we’ll go somewhere else. We got to go somewhere else for a while. We might go to Nygina country or Karajarri country, wherever. They work that out, we work this out together, they work it out, bosses. This place might stop for a while but he don’t end, he just stop for a sort of while till we feel more better. Because it’s a big thing when you lose you know, senior `people. That’s not an easy thing.”

82                  Later in his evidence Mr Dodson explained why the process of getting young men to go through law at Kunin had been difficult. He referred to the two traditions of assimilation and Christianity which he said had helped to break down the process of young people going through law, but emphasised that that made the task of the elders in keeping the knowledge and practice of the law alive even more important. Mr Dodson was asked if it is unusual for men to be put through law at Kunin. His response was:

“PATRICK DODSON JAGUN: Well, as I said, unusual. If you’re thinking about – when you say, ‘unusual’ to me, that’s a small space of time. You’re talking about 10 years or whatever it is. I’m not sure what you’re talking about, ‘unusual’. What’s it relate to? From the death of my grandfather to now or from the death of my uncle until now or from the time these people went through? I’m not sure. It’s a relatively short period in the – in our culture because the law was put [there] from the Bugarrigarra. Our belief and our responsibility is to maintain the law and that’s our job, his job, his job and my job in the Yawuru country. We are supported by these men.

MR BELL: Well, let me put it to you specifically. You and Nipper were the last to go through the law. That happened in 1994 at Kunin. Does that gap in time say anything about whether the law is still observed at Kunin?

PATRICK DODSON JAGUN: It doesn’t say anything to mean, no. It doesn’t say. Because I know what we do. From the day we were put through that law to this very day, I know what we do and I know what sits over there on that ground. And that ground is alive.”

83                  Patrick Dodson also gave evidence of the continuing significance of senior Yawuru law men “speaking” for the law at Kunin. He said:

“To speak for the law, around which that Reserve is drawn, means that the responsibility to continue the law is the responsibility of those men, the Yawuru men. It means to make the judgments about people who may or may not be permitted to go through the law. It means to protect and look after that ground from interference from people who shouldn’t be there, or people who are in the road of where the law has to travel when it comes there”.

84                  The present case affords a good example of the danger of a Court accepting a “historical snapshot” of the cessation of traditional practice or of the observance of traditional law and custom: see the Yorta Yorta case at [59] per Black CJ. The evidence supports the conclusion that, in accordance with traditional law and custom, senior Yawuru law men have continued to exercise their traditional role and function in respect of Kunin and the sacred objects stored there. The evidence also demonstrates that, notwithstanding gaps in the ceremonial use of Kunin as a law ground from time to time, the continuing traditional use of Kunin as a law ground has been substantially maintained.

85                  Accordingly, I have concluded that the evidence establishes that Kunin has been used and continues to be used as an Aboriginal law ground since 1829 in accordance with Aboriginal law and custom. However, that conclusion does not determine the discrete issue of whether the whole or only part of Kunin has been used for that purpose.

86                  The Rubibi applicants tendered a recent survey of the boundaries of the Reserve. The survey sets out the claim area and the precise locations of the Leregon structures on the Reserve to which objection is being taken by the Rubibi applicants. A primary issue between the Rubibi and the Leregon applicants was the extent to which the Leregon structures would interfere with the use of the Reserve as a ceremonial site. The main witness for the Rubibi applicants on that subject was Patrick Dodson. Mr Dodson conceded that the boundaries of the Reserve were arbitrary, in the sense that they did not delineate the area of significance and did not indicate the only places in the vicinity of the Reserve where “men’s business” was conducted. It was put to Mr Dodson that the Reserve is a large place and, as ceremony only takes place in a small part of it, only that area is needed. Mr Dodson responded:

“That’s never been the position put by the law people and it’s not the position from the law. The country around that Reserve, certainly inside that Reserve, is alive.”

87                  With the agreement of the parties, confidential evidence in relation to the ceremonial use of Kunin was given in restricted session. In a restricted session Mr Dodson explained in some detail the manner in which he claimed the Reserve and the associated areas around it are “alive”. He explained how the whole of the areas are to be used in relation to the first and second stage ceremonies. In explaining that use, Mr Dodson said that, although particular ceremonies were required to be carried out at specific locations in the Reserve, aspects of the ceremonies involved the participants obtaining resources from other parts of the Reserve as well as from outside of the Reserve. He also said that it was of great importance that the young men going through the first stage ceremony be free to travel to locations within the Reserve and, where necessary, outside of the Reserve without losing the seclusion or privacy that is an important feature of the ceremony.

88                  Mr Dodson claimed that it is also a very important feature of the ceremonies that the young men be kept “dry” throughout the ceremony; an aspect of that state was referred to by Mr Dodson as a requirement that the participant have a good lian. Lian is the Yawuru word defining the place for the inner spirit which is said to keep people strong and healthy and provide them with a sense of self. Thus, Mr Dodson said that when a young man goes through the initiation ceremony or through the second stage of becoming a law man his “lian has got to be clear”. Mr Dodson said it is important that there be seclusion, that there be no one in the path of participants so they can move freely and be “clean, at peace, relax[ed]” to enable their proper participation in the ceremonies in the manner laid down by law. Mr Dodson explained that when men are being put through law it is of importance that they are kept “clean of people who haven’t been through the law, kept clean of people who don’t have any reason [under the law] to be in this area”.

89                  Mr Dodson stated that the Reserve contained the minimum boundaries within which ceremonies were required to be carried out and that the boundaries were only arbitrary in the sense that they were “enforced upon our people as the best option”. Mr Dodson’s evidence is consistent with the establishment of the Reserve in 1971 as a ceremonial site from which the public were to be excluded.

90                  The evidence given in restricted session was important to the claim of the Leregon applicants, whose representative had voluntarily absented himself from the restricted session to avoid causing cultural offence. Consequently, I directed that the substance of evidence, that appeared not to be confidential and therefore could have been given in open session, be given again in open session and that as much of the transcript of the evidence given in the restricted session that could have been given in open session be made available to the Leregon applicants.

91                  Pursuant to that direction, Mr Dodson gave further evidence in open session in relation to the use to which the Reserve and the surrounding areas were put as part of the first and second stage ceremonies conducted there. It is unnecessary for present purposes to outline the detail of that evidence, which was given by reference to a map (Exhibit R6) containing sites of cultural significance in the vicinity of Kunin. It is sufficient to say that it was clear from the evidence given by Mr Dodson, both in the restricted session and in the open session, that the conduct of the first and second stage ceremonies in accordance with Aboriginal law requires, at the very least, that the whole of the Reserve be available for use, including seclusion and privacy, so that the male participants be protected from outside contact or intrusion, other than contact which forms part of the ceremonies.

92                  More particularly, Mr Dodson explained why the Leregon structures interfere with the ceremonies that take place on Kunin and offend against Aboriginal law. He said that, under Aboriginal law and custom, the law ground is a place where uninitiated persons were not to go or, at the least, were not to go without authorisation from a senior law person.

93                  Mr Dodson’s evidence was not seriously challenged and I accept it. It was put to Mr Dodson that the Leregon structures have not interfered with, or will not interfere with, the conduct of ceremonies within the claim area in accordance with traditional Aboriginal law and custom. His response was that those structures on the claim area, and any residence in them by uninitiated or unauthorised persons, is inconsistent with, and offends against, traditional Aboriginal law and custom.

94                  I am satisfied that the Rubibi applicants have established that the claim area was used as a traditional Aboriginal law ground at and since 1829. They claim that the use has been by members of the Yawuru, Djugan and Goolarabooloo peoples.

95                  There was some evidence that the Djugan, rather than the Yawuru, people held a traditional connection to Kunin. Hosakawa’s thesis was relied upon by the State to suggest that when the Yawuru people from Thangoo moved to the Kunin and Broome areas in the late 1940s they brought their language and law with them, supplanting the Djugan people who spoke a Yawuru dialect. A linguistic report by Mr Clendon supported the view that Djugan was a dialect of Yawuru, but Mr Clendon stated that Yawuru“appears to have been spoken continuously in the Broome area from before contact with Europeans until the present”.

96                  Dr Kolig regarded the present claimant group as “genetically mixed” but broadly supported the view that if any ambilineal group had a traditional connection to Kunin, it was probably the Djugan people. Dr Kolig accepted that the ethnographic information generally supported the view that Djugan was a dialect of Yawuru, and stated that although, as a group, the Djugan people might be seen to have been original owners and occupiers of part of the Broome area, subsequently they appear to have allowed the Yawuru people who were at first less affected by the presence of Europeans in and around Broome, to “display an expansionary dynamic”. In the result, Dr Kolig thought that the information available tended to support the view that the Yawuru had absorbed the Djugan people who lived within the broader Yawuru area.

97                  From a survey of the ethnographic information Dr Kolig concluded that the Goolarabooloo people are coastal people north of Broome. Mr Clendon also states that the Goolarabooloo people have been associated with the coast north and west of Broome and notes that the term Goolarabooloo (Kularraburru) appears to be a variant of a Yawuru word which literally means “western people – westerners” and more generally west coast people.

98                  In my view the State’s contention that if any people can establish the requisite traditional connection with Kunin it will be the Djugan people, is not supported by the evidence. Evidence, which was largely unchallenged, was consistently given by the Rubibi witnesses that the Djugan community are part of the Yawuru people. Further, the fact that Djugan is a dialect of Yawuru is not helpful to the State. The State did not call any witness who said they were Djugan but not Yawuru. As the State’s expert linguist Mr Clendon stated:

“There is, moreover, a question about the denotative content of labels such as ‘Jukun’, ‘Minyjirr’ and ‘Walman’. A good deal of confusion in this area may be avoided once it is realized that speech varieties (dialects) are not the same kinds of things as people and that labels designating the one are usually not able to be mapped onto the other (local groups, extended families, clans etc) in any kind of unique or exclusive manner”.

99                  I am satisfied that, at least in relation to their traditional connection to Kunin, the Djugan people are a sub-group of the Yawuru people. Further, as such, they do not have, and do not contend that they have, a discrete or independent connection to Kunin as a traditional law ground.

100               I am also satisfied that it has not been established that the Goolarabooloo people have a relevant traditional connection to Kunin. Counsel for the Rubibi applicants accepted that the Goolarabooloo “don’t assert an interest in that law ground, they do not practice law at that law ground, and they acknowledge the responsibility of the Yawuru lawmen for the law ground”. The reason the Goolarabooloo people have not practiced law at Kunin is because it was not part of their creation story and although the Goolarabooloo people may share aspects of the law with the Yawuru people, those aspects are not such as to establish that they have a native title right or interest in relation to Kunin. Accordingly, any reference hereafter to the Rubibi claimant group is a reference to the group that includes the Djugan, but excludes the Goolarabooloo, peoples from that group.

101               For the above reasons I am satisfied that the Yawuru people (including the Leregon and the Djugan), but not the Goolarabooloo people, have established a traditional connection with Kunin by reason of their use of Kunin, since 1829, as a law ground in accordance with the traditional law and custom.

The claimant community

102               The remaining major issue of fact was whether the present Yawuru community claiming to hold native title is an identifiable traditional community that has continued, as such, to maintain a traditional connection with Kunin since 1829. While this issue is concerned essentially with whether the present Yawuru community is the traditional Aboriginal community that holds native title rights and interests in relation to Kunin, a helpful starting point, for present purposes, must be my finding that Kunin was used as a traditional law ground for Yawuru people at and since 1829.

103               The anthropologists were in dispute over whether the current Yawuru community is the traditional community that has used Kunin as a law ground since 1829. Dr Sullivan considered that the concept of a “society”, rather than that of the clan, tribe or language group provides a more useful basis for communal identification in the present case. He stated that the current Yawuru community has a traditional communal attachment to Kunin and to the other land traditionally occupied or used by the community. Dr Kolig did not dispute that the Yawuru community defined by Dr Sullivan may constitute a reasonable sociological construct of the present day community but disputed that it was that community that had possessed a traditional attachment to Kunin at and since 1829.

104               Dr Sullivan claimed that the community he defined has a shared history, a shared language (which is still spoken among some of its members) and shared patterns of relationships, in particular, kinship relationships. He said that:

“…it’s a community that shares understandings of the natural world; it has shared behaviours in the exploitation of the natural world; it has conventional ways of relating to its members that are different from the ways that it relates to other Aboriginal people and to non-Aboriginal people.”

105               In the above context Dr Sullivan claimed the current Yawuru community is constituted primarily of Yawuru persons who can establish ambilineal descent from a Yawuru person and who follow Yawuru tradition and culture. He said a Yawuru person was one who would self-identify, and be identified as such by other members of the Yawuru community. Dr Sullivan regarded adoption of the concept of the birth spirit (rai), the holding and passing on of received traditional knowledge, including a belief in the Bugarrigarra, residence and birth in Yawuru country and descent from Yawuru antecedents, as the factors that lead to both self recognition and Yawuru communal recognition of a Yawuru person having a traditional attachment to Yawuru land.

106               The State criticised Dr Sullivan’s approach on the basis that he was “working backward from what is said to be the present situation, to arrive…at a predetermined conclusion”. The State submitted that the correct approach to determining continuity was that adopted by Dr Kolig, namely to “identify essential features of the traditional culture and to determine the correspondence between those features and the present situation”.

107               Ultimately, the Court is required to undertake a fact finding process involving questions of degree. Whether a forward or a backward looking approach is appropriate in a particular case will depend on the facts being investigated. There is, however, considerable force in the observation made by Black CJ in the Yorta Yorta case at [50] that “[a] process that begins, however, with an assessment of what is claimed at the present time has the fundamental advantage of allowing adaptations and evolution to be seen for what they are and, in some instances, to be recognised at all”.

108               Evidence was given by many of the Rubibi witnesses about a number of the matters listed by Dr Sullivan as being factors that can lead to recognition of persons as members of a community having a traditional attachment to Yawuru land.

109               The first such factor, rai, was described by Dr Sullivan as follows:

“Among the spirits which Broome fishers and hunters call out to after a long absence are those that are said to enter a woman as the essence of the child she is to give birth to. These are called ‘rai’. The means of entry is usually a food species she has eaten. The child is frequently born with the mark of the spear, digging stick or other implement upon it. Thus each individual is linked to naturally occurring species, precise locations, father and mother (it is usually the father who has done the hunting or at least has ‘dreamed’ the child spirit the woman has ingested) and the world of spirits and mythic ancestors, since the rai have been left in the landscape during the creative epoch, bugarigara, or Dreamtime.

The belief in spirit children is almost universal in Aboriginal Australia. Some anthropologists have concluded that in pre-contact times Aborigines had no understanding of the importance of insemination in conception and understood the entire process to be originated by the reception of a spirit child, or rai.”

110               Rai was also described by Dr Sullivan as “conception totemism”, which is a primary regulator of land attachment. Dr Sullivan explained that rai cuts across the descent process, making the system infinitely more flexible. A Yawuru person’s rai will be located on Yawuru country and be ascertained from when the child is born. Thereafter, it directly links the child with that area. Dr Sullivan stated the belief in rai to be “a belief in the unity of spirit, land, myth, and person”. He noted that its significance in the present context was:

“to situate the economic activity of hunting and gathering in a wider framework of religious relief, and as an important means,…by which people regulate and negotiate their particular and unique rights over areas of land within the common land heritage of the whole society”.

111               It was clear from the evidence of almost all of the Rubibi witnesses that the concept of rai has been, and remains, important to Yawuru persons and that it links them in a unique way to their land. In a paper tendered in evidence, Joseph “Nipper” Roe described rai in the following terms:

“Contained within our Lian are our Bilyurr and Rai. Bilyurr is our spirit from within, which is oneness with the physical body. After death the Bilyurr goes on its journey to a special place. Rai is our spirit from the country. The father dreams or see ‘child spirit’ that wandered away from the group dwelling place which is called Yadangal. He’s now aware that his wife is or will be pregnant and the child’s spiritual connection in a form of an animal, fish, plant or a particular area in the land, that will coincide during pregnancy, be his/her Rai. The physical and spiritual conceptual place of birth becomes the central part of the identity of that person and he also becomes a protector/custodian. When we pass away our Rai (spirit from the country) goes back to the country where it pre-existed and becomes a ‘child spirit’ again and remains in the group at Yadangal awaiting another spiritual rebirth.”

112               Mr Roe also stated:

“Under our law, my rai will go back to Mari Mari when I die. For this reason, Mari Mari is very important to me, as is Jambarrnganyjal, where I was physically born. I have a special connection to these places. I have to look after them. I share this responsibility with others who were born there or whose rai comes from there.”

113               Mr Dodson’s evidence in relation to the second factor listed by Dr Sullivan, namely the passing on of received traditional knowledge, including knowledge concerning the Bugarrigarra, was that the law at Kunin derived its existence from the Bugarrigarra, a belief which was at the core of the Yawuru people’s cultural and spiritual existence. He described the Bugarrigarra as the period in which all the features (including soaks that provide water and enable people to inhabit a location) were placed upon the land; and when the law, the kinship structures and languages were given to the people inhabiting that land. Mr Dodson said it was a period that goes back to before anything that can be thought of.

114               In subsequent evidence given in restricted session, the content of which was agreed to be made available in public session after the exclusion of matters required to be maintained in confidence, Mr Dodson explained the Bugarrigarra story associated with Kuninand other Yawuru land. In substance, the Bugarrigarrastory 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.

115               Mr Dodson stated that Kunin has always been a law ground because it was created as a law ground for the Yawuru people in the Bugarrigarra. He explained that it was possible to know from the physical features of Kunin that it was established as a law ground in the Bugarrigarra and that, once a law ground is established in the Bugarrigarra, it never ceases to be a law ground because the “law is in the ground”.

116               Mr Dodson stated that the other peoples established along the same Bugarrigarra track have a shared law with the Yawuru people and also share Kunin as a law ground. Mr Dodson explained the sharing of law as follows:

“MR BELL: The Court has received evidence that the law is shared with other groups, Nyangumarta, Karajarri, the other two groups, do these groups have lawgrounds?

PATRICK DODSON JAGUN: Yes.

MR BELL: Were those grounds laid down, or constituted, during the Bugarrigarra?

PATRICK DODSON JAGUN: It’s hard to answer for those people, but I would say yes.

MR BELL: Why is it hard for you to answer for those people?

PATRICK DODSON JAGUN: Because you are asking me a question about someone else’s country.

MR BELL: Yes. Who answers for them in respect of that country?

PATRICK DODSON JAGUN: Those people, Karajarri answer for Karajarri, Nyangumarta answer for Nyangumarta.

MR BELL: Yes. Who answers for Yawuru?

PATRICK DODSON JAGUN: Yawuru.

HIS HONOUR: Sorry, I haven’t understood. Do the groups that you were referring to, are they not Yawuru groups?

PATRICK DODSON JAGUN: They’re not Yawuru people.

HIS HONOUR: You share some law with them – you share the law, but not the lawground with them. Is that what’s being suggested?

PATRICK DODSON JAGUN: It’s like a common law we hold, but they – that’s the law in their country and they are the bosses of the law in their country.

HIS HONOUR: Is there any occasion on which they might come for sharing that law on say a Yawuru lawground?

PATRICK DODSON JAGUN: Oh yes. But they do that under our authority.

HIS HONOUR: Yes, thank you.

MR BELL: Can you tell his Honour something of the law that is shared, or what this concept of shared law means?

PATRICK DODSON JAGUN: Well the kinship is a good example because that is shared.

MR BELL: Yes.

PATRICK DODSON JAGUN: Banaga, burungu, garimba, barjarri. The rules that related to relationships and marriages is shared because of that kinship structure. There are other aspects which may be more appropriate to try to explain at another time about that.

MR BELL: The fact that the law might be shared, does that mean that the right to speak for country is also shared?

PATRICK DODSON JAGUN: Not for country. Country belongs to the people from the country. They speak for the country. Yawuru speak for Yawuru country, Karajarri speak for Karajarri country, Nyangumarta speak for Nyangumarta, Mangala speak for Mangala, Nygina speak for Nygina. Whoever the people are belong to that country, they talk for that country. We don’t talk for their country.

MR BELL: What does it mean to speak for country in practical terms, about the right to say who goes in, during what time, for what purpose?

PATRICK DODSON JAGUN: You respect those people. You respect the rights of those people to look after when you come to that country. If someone comes to our country, we’ve got to look after them so they don’t go to places, like Kunin for instance. If they don’t know where places are, in our law could be dangerous to them, we explain to them to keep away from those places. If they want to go fishing or hunting in the country, then we can explain to them where they can go. They’re free to go but if they come from another place, we can show them or take them to those places, so they can go, they’re free to go there. But they got to clear those things with people from the country.

MR BELL: In reference to Kunin and here I mean specifically the Reserve, who speaks for that place?

PATRICK DODSON JAGUN: The lawmen.

MR BELL: The Yawuru lawmen?

PATRICK DODSON JAGUN: The Yawuru lawmen.

MR BELL: What does it mean to speak for the Reserve?

PATRICK DODSON JAGUN: To speak for the law, around which that Reserve is drawn, means that the responsibility to continue the law is the responsibility of those men, the Yawuru men. It means to make the judgements about people who may or may not be permitted to go through the law. It means to protect and look after that ground from interference by people who shouldn’t be there, or people who are in the road of the where the law has to travel when it comes there.

MR BELL: It includes the right to say who shall – you may enter that area?

PATRICK DODSON JAGUN: It does. No-one can walk in there without our permission. If people go in there without our permission, they break the law. They’re not allowed to. Anyone with proper respect understands that.

MR BELL: In practical terms, if senior Karajarri or Nyangumarta lawmen were present and you were in their company and an issue arose in relation to whether to go to the Reserve, would they be involved in discussions about who would enter and for what purpose?

PATRICK DODSON JAGUN: They’d ask us. Or we would invite them.”

117               Evidence adduced by other Rubibi witnesses, both Yawuru and non-Yawuru, also demonstrated that it was well accepted that under the traditional laws women and uninitiated men could not venture onto the land at Kunin and that if anyone else wanted to go, including law men from other groups, they would need to ask for permission. For example, Mary Tarran stated that:

“Under our law, I am not allowed to go to the law ground and I have never been there. If I am driving past there on the road, I won’t even look at the place, and I tell my kids the same. If I had to stop my car on the road that goes past the place, I would make sure I get out on the opposite side. It’s a very important and sacred place”.

118               The evidence of the Rubibi witnesses, again largely unchallenged, was of the holding, passing on and receiving of the Yawuru community’s traditional knowledge and law (including rai) as laid down in the Bugarrigarra.

119               Mr Dodson’s evidence set out above referred to another aspect of that knowledge and law, namely kinship relationships in the Yawuru community. Central to the kinship system is the concept of skin groups. There are four different “skin groups” in the community, and the skin group to which Yawuru persons belong places them in a certain kin relationship with everyone else. A Yawuru person at birth takes his or her skin relationship from the person’s mother. Skin determines who the person may marry and governs the person’s role in rituals and ceremonial activities, such as burials, as well as behaviour towards others. An important aspect of the skin concept is the obligation of skin brothers to take responsibility for putting young men through the law.

120               Most of the Yawuru witnesses acknowledged their skin group. The State conceded that “many people are aware of its existence” but contended that the evidence does not establish that the system has been substantially observed. Although many witnesses had “right way marriages” (a marriage to a person of the correct skin group) some witnesses admitted to “wrong way marriages” (marriage to a person in a proscribed category). According to the evidence of the Aboriginal witnesses, the skin system has worked well and is still believed to control who should marry whom and governs responsibilities within the community. For example, Mrs Elsie Edgar stated:

“Nowadays, some young people marry wrong way, but the Yawuru rule for marriage still works, because when young people stop together and they are really wrong way, the old people will separate them”.

121               Frank Sebastian gave evidence that he “got a hiding” from his parents for marrying “wrong way” but said that it was too late to separate because his wife was pregnant.

122               Although many of the Rubibi applicants’ witnesses accepted that in contemporary society the rules concerning relationships between different skin groups are breaking down and becoming more difficult to enforce, the skin system nevertheless continues to be recognised and accepted by the Yawuru people as an integral part of their traditional and cultural life.

123               Evidence was adduced about two other kinship customs which continue to be recognised by the Yawuru community: gumbala relationships and the concept of malinyanu. Mrs Elsie Edgar explained that a gumbala “means someone with the same name, a name that is given to you from that family. You have to look after your gumbala, give them things, like clothes”. The malinyanu concept means that mother-in-laws and son-in-laws may not look at each other or speak to each other. There was evidence of the continued practice of this custom during the trial; a screen was erected to prevent mother-in-laws and son-in-laws attending the hearing from seeing each other. A current Yawuru phrasebook contains phrases such as “Don’t come here; your son-in-law is here”.

124               A further aspect of Yawuru tradition is knowledge and use of Yawuru language. That knowledge and use is no longer extensive throughout the claimant group although some of the witnesses attested to speaking Yawuru with other members of the group. A current phrasebook of the Yawuru language, which was tendered in evidence, was dedicated to “three Yawuru speakers Mrs Doris Edgar, Mrs Thelma Saddler and Mrs Elsie Edgar”, all members of the claimant group. Further, evidence was given of a number of efforts made by the Yawuru community to ensure the preservation of the Yawuru language. For example, Ms Tarran stated that there is a Yawuru language program in Broome schools and that a language program was being established by the Bugarrigarra Nyurdany Arts and Culture Centre.

125               Hosakawa reported in 1991 that he found at least 24 native speakers of Yawuru, and about 20 people of Yawuru descent who can “hear” the language. Hosakawa found that the majority of these spoke the Julbayi dialect of Yawuru.

126               Dr Sullivan stated that the traditional language spoken in, and associated with, the area or locality around the claim area was Yawuru. He claimed that the small groups associated with particular areas within the locality around Kunin (who spoke Yawuru or its dialects) were called Jilburnuang, Idarr, Leregon, Yardugarra, Walmun, Marar, Minyirr and Broome Town. Evidence was also adduced of people describing themselves by their Yawuru Aboriginal names as well as by their European names, such as Mr Sebastian, (“Gajai”) and Mr Dodson, (“Jagun”).

127               The evidence to which I have referred was not seriously in dispute. That evidence, together with the evidence upon which I have relied in finding that Kunin was used as a traditional law ground since 1829 plainly evidences the holding and passing on and receiving of traditional knowledge within a community that has recognised and used Kunin as a traditional law ground. It was also not seriously in dispute that the persons doing so were generally resident or born in what they would refer to as Yawuru country. Whether that “country” is land in respect of which those persons hold native title rights and interests is the subject of another proceeding and does not presently arise for consideration. The State claimed that witnesses called by the Rubibi applicants had not established ancestry from members of the clans traditionally associated with Kunin and the surrounding land. However, the Rubibi applicants did not put their case on the basis that Kunin was the “country” of any one particular group of Yawuru people. Rather, they claimed that it was their, and their ancestors’, traditional connection with Kunin as a law ground that provided the requisite nexus between Kunin and the Yawuru people.

128               Dr Kolig, however, claimed that the current community, modelled on ambilineal descent, is not the same traditional community that used Kunin at and since 1829, which was modelled on patrilineal descent. Dr Sullivan’s riposte was that the traditional social structure of the Yawuru community, which now uses Kunin as a law ground, was not substantially different to that of traditional Yawuru community that used and occupied Kunin in 1829. He stated:

“…the Aboriginal people of the Broome region who call themselves variously Yawuru, Djugan, and Goolarabooloo have an unbroken connection with the land and the population since before the assertion of British sovereignty, that they constitute an organised land-holding society, and that they continue to occupy the land under claim according to their traditional customs.”

129               Dr Sullivan contended that the traditional community originally held land communally as a regional group. He stated that the area around Broome is an arid area and that the conclusions in the ethnographic literature in relation to patrilineal clan-based holdings are inapplicable to the traditional community because they are based on a model of social organisation that does not apply to an arid region. Dr Kolig disputed that proposition but Dr Sullivan stated that it would make very little difference to his conception of the Yawuru community if the evidence were not able to establish ambilineal descent in times past. He stated that this was because there are other important aspects of being a member of the Yawuru community. Of course, even if the patrilineal social organisation of traditional Aboriginal society were accepted, it does not follow that the gradual shift to the ambilineal social organisation of that community results in the cessation of continuity between the pre-contact community and the present community.

130               Dr Kolig said that the relevant community at sovereignty was based on a clan model and that primary rights in land were conferred by patrilineal descent. Such clans were said to be exclusive in their territoriality in the sense of being a politically organised landholding group. The estate was said to be held by the relevant community in the broader Kunin area because the patri-clan occupied a given territory, speaks mutually intelligible dialects, has a common kinship system and generally shares the performance of ceremonial rights of interest to them. Dr Kolig insisted that continuity of the patri-clan model of traditional Aboriginal society is a precondition to recognition of the Yawuru community as descendent from the traditional Aboriginal community that maintained any traditional connection with the broader Kunin area in 1829.

131               Dr Kolig accepted, however, that the historical ethnographic literature was “neither clear nor unambiguous” that estate ownership was necessarily by reference to patri-clan membership. He stated that a distinction was to be drawn between primary rights to land, being rights arising by membership of a patri-clan, and secondary rights to land which may arise by membership of a broader society having an attachment to that land. The primary rights relate to the right to use and occupy the land in question to the exclusion of others. The secondary rights related to access to and assembly at certain locations for ceremonial gatherings and short term exploitation of surrounding areas for subsistence purposes. Thus, so Dr Kolig argues, persons who may in a wider sense be members of a particular community by reason of linguistic, social or other associations only enjoy secondary rights which are not inconsistent with the prerogatives of the holders of the primary rights.

132               It may be that it was in the context of secondary rights that Dr Kolig accepted that ambilineal descent may have become part of traditional community organisation after European contact. He said:

“Following European contact, as might be expected, a relatively new modus of land attachment has evolved among Broome Aborigines more congenial to conditions in post-contact times. In fact the new traditions of owning and using land which have developed may deviate more or less significantly from pre-contact patterns, but nonetheless have the flavour of ‘tradition’. Descent may now have become ambilineal, attachment to place may be determined less by descent than by spirit origin, custodianship of sacred myth and ritual, perhaps even residence alone (of self and even parental and grandparental residence) may now be seen to confer rights in land. In fact, Sullivan (1998:103) appears to be saying a person may claim attachment to more than one place. General recognition of an individual’s personal claim depends solely on consensus among respected elders (Sullivan 1998:103).”

133               He later added:

“However, through the impact of western civilisation, sustained since the mid-19^th century, profound changes in ‘tradition’ or what is considered such, have taken place. Broome Aborigines, perhaps more than other groups, had suffered very early already a profound disruption of local organisation, displacement and dispossession, militating for the evolvement of new forms of some kind of land attachment. Not surprisingly strict patrifiliation with local clans became an untenable requirement. A greater degree of fluidity evolved allowing at first outsiders to gain residency and then, on the basis of traditional mechanisms of acquisition, develop a sense of land-holding.”

134               Ultimately, Dr Kolig contended that the community he defined that existed in 1829 had broken down to such an extent that it was no longer an identifiable community in anthropological terms. He accepted that identification of the same traditional community from time to time must allow for “reasonable change” as a result of the community structure and its culture continuously responding to the shifting needs of each generation. But he claimed that the broad criteria proffered by Dr Sullivan went beyond what might be accepted as reasonable change. In essence, Dr Kolig’s view appeared to be that, while he may not disagree with the proposition that the Yawuru community defined by Dr Sullivan might constitute a reasonable sociological construct of the present day community, it was not the same community that had a traditional attachment to Kunin as a traditional law ground in 1829. Rather, he argued that the current Yawuru community is substantially a response to the post World War II urbanisation of Broome and the removal of traditional Aboriginal communities from surrounding pastoral stations, and in particular, Thangoo, to camps around Broome.

135               Dr Kolig queried whether the mechanisms relied upon by Dr Sullivan to define the relevant community (ambilineal descent, spirit origin (rai), initiation, custodian of religious knowledge (sacred sites), ritual, dreaming tracks, and in some instances, residence) have evolved as part of a traditional cultural response to new forces or whether they have been created as new traditions and therefore have broken the chain of continuity.

136               Ultimately, the substantive dispute between the two anthropologists was less than it might appear to be. Both accepted that it is not possible to have a definition of a traditional community that is frozen in time. Rather, they agreed that the definition must recognise the process by which a community’s traditional laws and customs evolve, respond and adapt to change. That approach finds substantial support in the cases. Most recently in the Yorta Yorta case Branson and Katz JJ accepted that traditional laws and customs evolve, adapt and change over time. Their Honours stated at [127].

“The test of whether a law acknowledged, or a custom observed, is a traditional law or custom is, in our view, principally an objective test. The primary issue is whether the law or custom has in substance been handed down from generation to generation; that is, whether it can be shown to have its roots in the tradition of the relevant community. However, for the reasons so persuasively articulated by Toohey J in Mabo [No 2] at 192 (see para [118] above), it cannot be accepted that the fact that an indigenous society has adopted certain aspects of the now dominant culture means that the society has necessarily abandoned its traditional connection with land or waters.”

137               Black CJ stated at [59], in the context of cautioning against use of the “historical snapshot of adventitious content” of a community’s traditional laws and customs:

“It may well be necessary to have regard to events over a long period if misconceptions about adaptation and change are to be avoided. Recognition of the extent to which adaptation and evolution can take place without laws and customs ceasing to be ‘traditional’ is of critical importance when any comparison is made between the situation at two widely separated points of time.”

138               And at [72]:

“If due recognition is to be given to the capacity of native title to survive transition from its existence within a fully traditional lifestyle to its existence within a lifestyle changed by contact with a very different culture, any consideration of a period in which changes were taking place consequent upon the impact of European settlement must take full account of the possibility of adaptation to the changing circumstances of the time.”

139               Although Dr Kolig accepted that allowance must be made for “reasonable” change and presented substantial criticisms of Dr Sullivan’s analysis, he offered no clear guidance as to why the matters relied upon by Dr Sullivan do not fall within the concept of reasonable change to the interruption to traditional life. Dr Kolig conceded that, on the question of continuity, the evidence is in general unclear and suggests that it is “impossible to say just how much ‘culture’ had been ‘lost’” before the recent cultural revival and how much had to be “imported” or “re-learned” in order to revive or revitalise at least a semblance of the old culture. When Dr Kolig was asked whether a change from a patrilineal clan group to an ambilineal group would fall within his concept of “reasonable” change, Dr Kolig said:

“I think there would be consensus in the anthropological community that such changes might not be considered unreasonable. Whether this then constitutes a break in continuity is a different matter. But the changes in themselves would be considered reasonable, I think.”

140               The problem with Dr Kolig’s approach is that the concept of “reasonable” change is problematic and requires some unstated value judgment to be exercised on a question that essentially is one of fact and degree.

141               An example of the difficulties arising from Dr Kolig’s approach is the process by which Patrick Dodson and Joseph “Nipper” Roe had been put “through law” in a second stage ceremony without having been initiated in a first stage ceremony. The senior law man at the time was concerned about maintaining Yawuru culture and decided that the most appropriate way of doing so, and thereby preventing its disintegration, was to put Mr Dodson and Mr Roe, as two highly respected senior Yawuru men, “through law”. While the process and its purpose, was traditional, the mode of selection (putting uninitiated men through the second stage ceremony) was not. Whether the adaptation was “reasonable” is not easily answered. However, it was plainly an adaptation of traditional law and custom to meet changing circumstances. The process adopted had the purpose of maintaining traditional law and custom and, as the present case demonstrates, it has had some success in doing so.

142               In my view the question is not one of reasonable change but rather whether the evidences establishes that the present community is the community that has substantially maintained its traditional connection with Kunin in accordance with traditional laws and customs. In that context I do not find it necessary to make a finding on whether the relevant traditional community in 1829 was based on a patrilineal or an ambilineal model because I am satisfied that even if there was, originally, a patrilineal model, the evolution to an ambilineal model was part of a process of the community’s evolution to its present traditional form, rather than the creation of a new community. It was clear from the evidence that white contact had a significant effect on the traditional community. For example, evidence was given that an ambilineal community model evolved in part to bring within the community the children of Yawuru women who were fathered by the white settlers. More importantly, I am satisfied that the traditional Yawuru community, in accordance with its evolving but traditional laws and customs, accepted as its members persons who became a member by ambilineal, rather that patrilineal, descent.

143               The continued respect for, and recognition of, Kunin as a traditional law ground by members of the current Yawuru community and its continued use for putting male members of that community “through law” is an example of the continuity of the traditions of the Yawuru community. The evidence, to which I referred earlier, relating to rai, kinship system, the Bugarrigarra, the passing down of traditional knowledge and law and continued, albeit sparse, use of Yawuru and its dialects within the community, all tend to establish that the present community has maintained communal traditions, customs and laws. I do not regard the evidence as establishing that those traditions have ceased to be observed in accordance with Yawuru custom and law.

144               The remaining issue relates to whether the genealogical evidence as to descent establishes that the present Yawuru community, represented by the Rubibi claimant group, is descended from the traditional community that used Kunin as an Aboriginal law ground.

145               Expert genealogical evidence was adduced by the Rubibi applicants to establish that members of the current Yawuru community are descendants of the original communal native title holders. In Ward at [232] Beaumont and von Doussa JJ stated it is necessary to establish “a substantial degree of ancestral connection” between the community claiming the entitlement to the present enjoyment of native title rights in relation to land and the original native title holders. In rejecting any strict requirement of biological descent in respect of the Miriuwung and Gajerrong peoples, Beaumont and von Doussa JJ said at [234]-[235]:

“234. A requirement of ‘biological descent’ does not mandate that descent be patrilineal. The identity of those presently entitled to enjoy native title rights, is to be ascertained by reference to the traditional laws and customs as currently acknowledged and observed. The evidence in this case is to the effect that under the traditional laws and customs, a whole range of relationships may lead to membership of the community, including ‘father’s country’, ‘father’s mother’s country’, ‘mother’s country’, ‘mother’s mother’s country’, ‘regent’s country’, the country of a spouse, and spiritual conception or birth within the area. In the course of argument the State placed reliance upon Ms Kaberry’s book Aboriginal Woman; Sacred and Profane as providing evidence of a requirement of patrilineal descent. Ms Kaberry’s work lends support to the view that in relation to the enjoyment of particular areas of land by what are now referred to as ‘estate groups’, patrilineal descent was of primary importance. However, Ms Kaberry acknowledged a wide variety of relationships with land, including the right to ‘walk about’ or ‘live and hunt’ in a person’s mother’s country, a person’s mother’s mother’s country, a person’s father’s mother’s country and the place where the person was born (p 137). The evidence of the applicants discloses that they identify with traditional Miriuwung or traditional Gajerrong country, and have a primary right to ‘speak for’ particular areas within that country. Persons or families are associated with different areas not simply by patrilineal descent, but also through other relationships, for example through mother or grandmother. Some of the witnesses emphasised the importance of a right to speak for country derived through one’s father’s father, as against a right derived through one’s mother’s father or some other line of descent. Thus, in some areas witnesses spoke of people being ‘in front’ and others ‘being behind’, and the possibility was identified of a person being ‘in front’ in one area and in another ‘being behind’, but having influence in more than one area. Differing interests of this kind are explained by the different relationships recognised by the traditional laws and customs under which rights and responsibilities arise.

235. On the evidence, the traditional laws and customs acknowledged and observed by the communities in the determination area at sovereignty, and as currently acknowledged and observed by those recognised amongst themselves as present members of the Miriuwung and Gajerrong community, did not impose a requirement of strict biological descent, let alone patrilineal descent as a prerequisite to membership. The trial judge was plainly correct as a matter of fact to observe that the genealogies admitted into evidence showed ‘a broad spread of links with ancestors’ among the representative claimants and other witnesses who had given evidence in support of the claim. His Honour identified these people at 533-535. That broad spread of links is in our opinion sufficient proof of ‘biological’ connection between the present community and the community in occupation at the time of sovereignty. His Honour’s approach was correct in point of law and correct as a matter of fact on the evidence.”

146               Black CJ in the Yorta Yorta case referred to the above passage and stated at [88] that in establishing “a substantial degree of ancestral connection” between the original native title holders and the present community under traditional laws and customs a whole range of relationships might lead to membership of the claimant community.

147               On the same topic in the Croker Island case at [331] I stated:

“A descendant for the purposes of native title is a person whose ancestors were members of the community possessing native title at the date of sovereignty. Ancestors can include lineal or biological descendants or, analogously with real property law, persons who under the traditional law and customs of the community are to be treated as incorporated into the community for the purpose of inheriting or succeeding to the native title rights or interests possessed by the community.”

148               The above passages concerned claims to traditional “country” of the native title holders. As explained earlier, the present claim is concerned with a special part of country, a law ground. Thus, the Court is to consider ancestral connection in the context of the community or its members having responsibility for “speaking for” that country in accordance with traditional law and custom.

149               For the reasons stated above, those traditional laws and customs recognise ambilineal descent of members of the present Yawuru community. The description of the present title holding community was stated by the Rubibi applicants to be:

“The community comprised of the members of the Aboriginal groups variously described as Yawuru, Djugan and Goolarabooloo and being aboriginal persons who are descended from . . . [the apical ancestors listed in schedule A of the Application] or other ancestors of the group or who are members by virtue of traditional law and custom of the land”.

150               The Rubibi applicants tendered genealogical evidence of the ancestral history of members of the Rubibi claimant group and, in particular, evidence showing ambilineal descent from the apical ancestors listed in the Rubibi applicants’ application.

151               In Ward v Western Australia (1998) 159 ALR 483 at 531-532 Lee J described the purpose of genealogical evidence as:

“By that evidence the applicants sought to establish that the applicants had forebears who were members of an Aboriginal community or communities that occupied the claim area well before Aboriginal people had contact with European settlers and, by inference, before sovereignty was asserted in the State or the Territory. Further, by depicting the relationships between Aboriginal people, the material relied upon also spoke of the existence of an identifiable community that had a connection with the land through forebears and which observed, or acknowledged, traditional laws and customs of the forebears.”

152               Ms Kimal Barrett, a consultant anthropologist responsible for preparing the genealogies, identified approximately 80 apical ancestors as antecedents of the Rubibi applicants living in or around Broome in the late 1800s. She concluded that “[a] distinct group of antecedents was therefore living from the land in and around Broome from whom the present native title claimants are descended”. For example, on the basis of the genealogies she was able to establish that:

·        Paddy Djiagween, Patrick Dodson's grandfather, was born around 1880; and

·        Annie Mawunga, Frank Sebastian’s grandmother and Felix Edgar’s mother, was born around 1880 and is buried in a cemetery in Broome;

·        Nyilandin (whose rai came from Minyirr) and Lija, Mary Tarran’s great grandparents, were born in 1850 and 1880 respectively.

153               The State accepted that the genealogies founded the inference that some members of the Rubibi claimant community are descended from Yawuru ancestors living around Broome at the turn of the century.

154               The Rubibi applicants contended that, in all likelihood, the 80 or more persons living in Broome prior to 1890 would have included persons who had been born prior to the acquisition of sovereignty in 1829, or that at the very least, these persons would have been born of families whose adult members were living within the Aboriginal community that existed in Broome at that time. The Rubibi applicants submit that the making of such an inference is supported by Kirby P’s comments in Mason v Tritton (1994) 34 NSWLR 572 at 588-589 as follows:

“The appellant’s biological descent has been accepted by the magistrate to have been proved back to the 1880s. Whether it may properly be presumed, or inferred, retrospectively to 1788 depends upon whether the circumstances of the case are such that the probabilities of the case favour the inference that no intervening events occurred in the years to 1788 such as would break the biological links to groups or clans of Aboriginal Australians exercising fishing rights in the relevant area.

In the nature of Aboriginal society, their many deprivations and disadvantages following European settlement of Australia and the limited record keeping of the earliest days, it is next to impossible to expect that Aboriginal Australian will ever be able to prove, by recorded details, their precise genealogy back to the time before 1788. In these circumstances, it would be unreasonable and unrealistic for the common law of Australia to demand such proof for the establishment of a claim to native title. The common law, being the creation of reason, typically rejects unrealistic and unreasonable principles. If, therefore, in this case the only problem for the appellant had been that of extending the proved use of land by his Aboriginal forebears from the 1880s back to the time before 1788, I would have been willing to draw the inference asked. In more traditional Aboriginal communities the inference will be quite easily drawn. But, even in this case, it would seem to be commonsense to draw it.”

155               See also Lee J in Ward v Western Australia at 514.

156               The State claimed that it was not possible to assume that the community established to be in existence in the 1890s was ancestrally linked to the one in existence at the acquisition of sovereignty because the development of the pearling industry in Broome around the turn of the century may have broken the biological link.

157               It was common ground that the genealogies which were tendered in evidence could not be accepted as a perfectly accurate representation because, inter alia, of the difficulties arising as a result of the absence or generality of historical records and the extent to which reliance was necessarily placed on hearsay in constructing them. From time to time the genealogies were amended to deal with matters raised by parties and non-parties and, in the result, alternative views of some of the genealogical connections were tendered as evidence.

158               Ultimately, the State did not challenge the methodology used in preparing the genealogies but, rather, submitted that the evidence upon which the genealogies were based was inherently unreliable and that more extensive evidence ought to have been led by the applicants and other members of their community who were in the best position to tell the Court of their understanding of their family history. However, many of the witnesses corroborated the genealogies during their oral evidence and the Rubibi applicants also provided affidavits by a number of the claimants attesting to the genealogies that related to them or their families.

159               I am satisfied that the genealogies, corroborated by the evidence of the witnesses, demonstrate that on the balance of probabilities the Rubibi claimant group includes ancestral descendants of the apical Yawuru ancestors, putting to one side ancestors known to be Goolarabooloo, set out in Schedule A to the Rubibi applicant’s application. As I stated in the Croker Island case at [360], “descent from ancestors, who were members of that community, is not to be established by a narrow or technical approach to that issue”.

160               The genealogies have been constructed on the basis of ambilineal descent, rather than patrilineal descent. Even if the genealogies were constructed on the basis of patrilineal descent it would not necessarily follow that the claimed community does not exist; rather, it would probably be considerably smaller than the ambilineal community.

161               Accordingly, I am satisfied that for the purposes of the present claim the members of the present Yawuru community claiming to hold native title constitute an identifiable traditional community that has continued, as such, to maintain its traditional connection with Kunin as an Aboriginal law ground since 1829.

Extinguishment

162               Reserve 631 was set aside as a public reserve for public purposes on 24 November 1883 in accordance with Regulation 29 of the Land Regulations 1882 (WA). Although there was power to vest the Reserve in a corporation, that power was not exercised and Reserve 631 was not vested in any person or body.

163               In 1905, pursuant to Pt III of the Land Act 1898 (WA), Reserve 631 was placed under the control and management of the Mayor and Councillors of the Municipality of Broome. In 1919 the Reserve was placed under the control and management of the Broome Road Board. By-laws were made by the Shire in 1907 and by the Board in 1919. The by-laws were principally concerned with managing the depasturing of stock. In 1971, as explained above, Reserve 30906 was excised from the larger area of Reserve 631 and was vested in the Minister for Native Welfare for the purpose of a “Ceremonial Site”. In 1973 Reserve 30906 was vested in the Aboriginal Lands Trust for the “Use and Benefit of Aboriginies”. Apparently, the change came about because the government decided all land set aside for the benefit of Aborigines would be vested in the Trust which was to have a power to lease. The power has not been exercised in respect of Reserve 30906. No distinction appears to have been made between sites having and not having ceremonial significance.

164               The State accepts that the creation of Reserves 631 and 30906 did not extinguish native title. However, initially it contended that the reservation of Reserve 631 for public purposes, and the making of by-laws with respect to the Reserve, extinguished any exclusive native title rights to possess, occupy, use and enjoy the land.

165               The State argued that Reserve 631 fell within the principle stated by Brennan J in Mabo at 68:

“Where the Crown grants land in trust or reserves and dedicates land for a public purpose, the question whether the Crown has revealed a clear and plain intention to extinguish native title will sometimes be a question of fact, sometimes a question of law and sometimes a mixed question of fact and law. Thus, if a reservation is made for a public purpose other than for the benefit of the indigenous inhabitants, a right to continued enjoyment of native title may be consistent with the specified purpose – at least for a time – and native title will not be extinguished. But if the land is used and occupied for the public purpose and the manner of occupation is inconsistent with the continued enjoyment of native title, native title will be extinguished. A reservation of land for future use as a school, a courthouse or a public office will not by itself extinguish native title: construction of the building, however, would be inconsistent with the continued enjoyment of native title which would thereby be extinguished. But where the Crown has not granted interests in land or reserved and dedicated land inconsistently with the right to continued enjoyment of native title by the indigenous inhabitants, native title survives and is legally enforceable.”

166               This passage was considered by Beaumont and von Doussa JJ in Ward where their Honours stated at [389]:

“It follows that while the mere reservation of land for a public purpose has not extinguished native title, it will be necessary in the case of each reservation to consider whether there is also a dedication which has created inconsistent rights in the public, or a use which has this effect, having regard to the nature of the purpose.”

167               Their Honours later applied this reasoning to various reserves in the case before them. In regard to Mirima (Hidden Valley) National Park they stated at [446]:

“The first matter is Reserve 37883, Mirima (Hidden Valley) National Park. When that land was resumed from the Ivanhoe pastoral lease, the exclusivity of native title rights had already been extinguished by the grant of the pastoral lease. That extinguishment removed the exclusive right to control the use of the land. The proclamation of the Mirima (Hidden Valley) National Park classified the land as Class A under s 31 of the Land Act 1933 (WA), and the reserve was vested in the National Parks Authority (now the National Parks and Nature Conservation Authority). As a reserve classified as Class A, the land, by s 31(1)(a) is to remain dedicated to the declared purpose of a national park unless and until Parliament otherwise specifies. Sections 42 and 43 of the current Land Administration Act 1997 (WA) contain a similar restriction. In Williams v Attorney-General (NSW) (1913) 16 CLR 404 at 462 Higgins J said:

‘…there is no doubt, to my mind, that both expressions, ‘dedicate’ and ‘set apart’ – for ‘some public use’ – connote the giving to the public of some rights in the land which subtract from the Crown’s full ownership; the appropriation of the land for some definite public purposes generally; and for some estate or interest better than at mere will.’

See also Randwick Corporation v Rutledge at 74 per Windeyer J. The dedication of the land as a Class A reserve, to the extent that it created rights in the public, would also have the effect of extinguishing the exclusivity of native title rights to possess, occupy, use and enjoy.”

168               The State relied upon the above passages, as well as on paragraphs [456] and [460] in the judgment of Beaumont and von Doussa J in Ward where their Honours discuss examples of reserves for public purposes, to contend that the act of setting aside the Reserve for public purposes extinguished the native title holders’ exclusive right in respect of decision-making, control of access, and control and use of resources at Kunin.

169               The State accepted that there was no evidence before the Court of the physical use of Reserve 631 as such which would be inconsistent with the continued enjoyment of the exclusive native title rights claimed by the Rubibi claimant group.

170               The State also contended that the making of by-laws with respect to the depasturing of stock and other activities on the land destroyed the exclusivity of any native title right to make decisions about the use and enjoyment of the land; access that persons have to the land; and control of the use and enjoyment by others of the resources of the area. The by-laws that were relied upon were published in the Government Gazette W.A. on January 11, 1907, March 31, 1911 and November 14, 1919. Although unable to point to any particular by-law that was inconsistent with the native title rights claimed, counsel for the State submitted that the very fact that there are by-laws that prohibit or regulate certain categories of usage of the Reserve meant that persons holding native title rights could not have the exclusive right to make decisions about what happens on the Reserve.

171               The State, however, conceded that its argument that the creation of the Reserve and the by-laws extinguished the exclusivity of native title was probably “academic” as it accepted that s 47A of the NTA appeared to apply with the effect that any prior extinguishment is to be disregarded. Section 47A provides:

“(1) This section applies if:

(a)                a claimant application is made in relation to an area; and

(b)                when the application is made:

(i) a freehold estate exists, or a lease is in force, over the area or the area is vested in any person, if the grant of the freehold estate or lease or the vesting took place under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or

(ii) the area is held expressly for the benefit of, or is held on trust, or reserved, expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; and

(c)                when the application is made, one or more members of the native title claim group occupy the area.

(2)              For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by any of the following acts must be disregarded:

(a)               the grant or vesting mentioned in subparagraph (1)(b)(i) or the doing of the thing that resulted in the holding or reservation mentioned in subparagraph (1)(b)(ii);

(b)               the creation of any other prior interest in relation to the area, other than, in the case of an area held as mentioned in subparagraph (1)(b)(ii), the grant of a freehold estate for the provision of services (such as health and welfare services).”

172               The State submitted that the requirements in s 47A(1) appeared to apply in the present case as when the claimant application was made one or more members of the native title claim group occupied the claim area. It accepted that the occupation of part of Reserve 30906 by Colin Lee and other members of the Leregon claimant group and the Rubibi claimant group’s use of the area as a Ceremonial Site appeared to constitute occupation for the purposes of s 47A(1)(c). Relevantly, in that regard in Ward at [449] Beaumont and von Doussa JJ stated:

“We think a broad meaning should be taken of the word ‘occupy’ in the requirement in s47A(1)(c) that one or more members of the native title claim group occupy the area. We think this requirement is met where a claimant member is one of the many people who share occupancy, and that the land may be relevantly occupied even though the person is rarely present on the land so long as that person makes use of the land for the reserved purpose as and when the person wishes to do so”.

173               The State therefore ultimately accepted that, pursuant to s 47A(2)(a) and (b), any extinguishment of exclusive native title rights and interests in the claim area by reason of the creation of the Reserve must therefore be disregarded. It also accepted that the making of the by-laws fell within the definition of “interest” in s 253 of the Act which included “…(b) any other right…charge, power or privilege over, or in connection with (i) the land or waters...” Thus, under s 47A(2)(b) the making of the by-laws was also to be disregarded.

174               Counsel for the Rubibi applicants submitted detailed written submissions on the issue of extinguishment. The Rubibi applicants submitted that the creation of Reserve 631 for public purposes, the placing of the Reserve under the control and management of the Shire and the Board and the making of the by-laws did not clearly and plainly evidence an intention to extinguish native title in the claim area within the Reserve. Thus, so it was said, there had been no extinguishment of exclusive native title rights and resort to s 47A of the Act was unnecessary

175               The Rubibi applicants submitted that, contrary to the submission by the State, Reserve 631 was not proclaimed as a public common. They contended that there was power under reg 120 of the Land Regulations 1882 to create the Reserve as a common, but that this was not done, and that references to Reserve 631 as a “common” used the expression in the general, rather than the legal, sense of the term. The Rubibi applicants also claim that the present case can be distinguished from the situations referred to in Mabo and Ward as there had never been any use or occupation of Reserve 631 that is inconsistent with the continuity of the exclusive native title rights claimed by the Rubibi applicants.

176               The Rubibi applicants contended that Reserve 631 can be distinguished from the Mirima (Hidden Valley) National Park discussed in Ward as it is not a national park. The difference was said to be that national parks were specially dedicated by a Governor’s proclamation and protected by s 31(1)(a) of the Land Act 1933, which provides they are to be “dedicated to the purpose declared in such proclamation, until [removed] by an Act of Parliament”. In contrast, Reserve 631 was said to be created for broad “public purposes” and that the Governor had very wide powers to deal with the land, including the power of disposition. Further, it was contended that the other reserves considered in Ward could be distinguished from Reserve 631 as, in each case, reliance was placed upon evidence of actual use to bring the reserve within the extinguishment principle expounded by Brennan J in Mabo.

177               The Rubibi applicants also contended that the appointment of the Shire and the Board to control or manage Reserve 631 did not, of itself, extinguish the exclusivity of the native title rights. Reference was made to findings in Mabo that:

·        general waste lands or Crown lands legislation are not to be construed as intending to extinguish native title and, likewise, the executive acts of the Crown under such legislation are presumed not to have intended extinguishment (Mabo at 111 per Deane and Gaudron JJ);

·        native title is not extinguished by the mere appointment of trustees to control a reserve where no grant of title is made as the appointment of trustees to control a reserve does not confer power to interfere with native title rights and interests (Mabo at 66 per Brennan J);

·        native title is not extinguished by a law that merely regulates the enjoyment of native title or which creates a regime of control that is consistent with the continuation of native title rights and interests (Mabo at 64 per Brennan J; Yanner v Eaton at [37].

178               The Rubibi applicants submitted that the power to make by-laws was conferred for the purpose of enabling Reserve 631 and the Broome township to be protected from the encroaching pastoral industry. This regime, it was said, altered only the manner of the control and management of Reserve 631, and not its character.

179               It was also contended that any inconsistent third party right or interest has to be established plainly and clearly, and must be in the nature of a lease, licence or other particular grant that demonstrates the requisite intention. It was submitted that such an intention is not demonstrated by the existence of the general Crown management regimes established under the relevant legislation, or the creation of general control and management regimes established under that legislation. Further, the Rubibi applicants relied on Yanner v Eaton to contend that it is necessary to look at the particular nature of the Aboriginal spiritual and religious connection with the land that is being claimed when considering whether the requisite intention to extinguish has been established.

180               The Rubibi applicants contended that if their submission concerning extinguishment was not accepted, s 47A of the Act would apply and require the Court to disregard “any extinguishment” constituted by the acts specified in par (a) and (b). They agreed that the present case is one in which the provisions of s 47A(1)(a) and (b)(ii) are satisfied. However, they disagreed with the State’s contention that the Leregon applicants or members of the Lee family relevantly occupied Reserve 30906. Rather, they contended that the Rubibi applicants had occupied the claim area by virtue of the control and supervision exercised over the law ground by senior Yawuru law men from time to time, as well as by the conduct of ceremonies and storage of sacred objects on the claim area.

181               In the creation of Reserve 631, its management and control by the Shire or the Board and the making of the relevant by-laws, there is an absence of evidence of any intention to interfere with, impede or otherwise affect the rights of the Yawuru people to use the claim area exclusively as a traditional law ground. Further, there is no evidence of any use or occupation of the claim area for any public purpose that is inconsistent with the exclusive use of the claim area as a traditional law ground. In these circumstances there is much force in the contention of the Rubibi applicants that there has been no extinguishment of the exclusive right to use the claim area as a traditional Aboriginal law ground.

182               However, I have not found it necessary to resolve that issue as I am satisfied that s 47A operates to require that any prior extinguishment be disregarded. In particular, I am satisfied that the following constitutes occupation of the claim area for the purposes of s 47A(1)(c) of the Act:

·        continuing supervisory and protective activities of the senior Yawuru law men in relation to the claim area;

·        the holding of traditional ceremonies on the claim area as and when the senior law men authorise those activities;

·        continued storage of sacred objects on the claim area;

·        occupancy of the Leregon structures constructed on the claim area by members of the Lee family, who are acknowledged to be members of the Rubibi claimant group.

183               Accordingly, the exclusive native title rights and interests claimed by the Rubibi claimant group have not been extinguished.

The Leregon applicants

184               As explained earlier, it is not really in dispute that the Leregon applicants are a sub group of the Yawuru people and, as such, are entitled to participate in the benefit of the native title rights and interests held by the Rubibi claimant group. I am not satisfied, however, that the Leregon applicants have established any independent right to any other native title rights or interests in relation to the claim area. Indeed, the case put on behalf of the Leregon applicants did not really seek to establish any such rights. Rather, as stated above, the thrust of the Leregon applicants’ case was to limit the Rubibi claimant group’s entitlement to specific sacred sites or areas within the claim area that were used as ceremonial sites. For the reasons set out above, I have concluded that the Rubibi applicants have established their claim to native title rights and interests in respect of the whole of the claim area.

185               There is, however, an issue between the Leregon applicants and the Rubibi applicants in relation to the Leregon structures that requires resolution.

186               Section 225 of the NTA provides that if a determination of native title is made, a determination must be made concerning, inter alia:

“(b) the nature and extent of the native title rights and interests in relation to the determination area;

(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).

187               There is an issue as to whether s 225 requires the Court to make a determination regarding whether or not the Rubibi applicants or other members of the claimant group will have the right to remove the Leregon structures and prevent further unauthorised residential use and occupation of the claim area. That issue raises a question as to the role of the Court in determining a dispute between members of a claimant community in the context of a native title determination.

188               In that regard Beaumont and von Doussa JJ stated in Ward [at 202]:

“s 225 requires the Court to determine the nature and extent of native title rights and interests in relation to the determination area. Within that area, however, the NTA does not require the determination to specify precisely which members of the community that is the common law holder of the native title rights and interests, have or may exercise particular rights in relation to particular areas of land. The enjoyment of the communal rights or some of them is a matter which is left for the common law holders to determine among themselves in accordance with the traditional laws and customs as currently acknowledged and observed.”

189               And at [205]:

“The degree of specificity required in a determination will depend upon the nature and extent of the native title rights and interests, and is likely to vary from case to case, depending upon the evidence. In Mabo [No 2], the court declared that ‘the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands’(save for the islands of Dauer and Waier and certain parcels of land excluded from the declaration). The declaration was made in those terms notwithstanding evidence that under the traditionally based laws and customs of the Meriam community, as currently acknowledged and observed, individuals within that community occupied and cultivated plots of land to the exclusion of other members of the community. It was not necessary for the declaration to spell out the personal or usufructuary rights of particular individuals within the community. The declaration as made determined the nature and extent of the native title rights held by the Meriam people as against the whole world. As between themselves, the Meriam people determined their respective rights and interests according to their laws and customs.”

See also North J at [682].

190               Beaumont and von Doussa JJ, however, at [213] accepted that matters such as who was entitled to be recognised as common law holders could be determined, if necessary, in a court of competent jurisdiction, by reference to the traditionally based laws and customs of the common law holders named in the determination, as those laws and customs are currently acknowledged and observed.

191               In Mabo No 2 Brennan J observed (at 63):

“…by applying the rule that the communal propriety interests of the indigenous inhabitants survive the Crown’s acquisition of sovereignty, it is possible to determine, according to the laws and customs of the Meriam people, contests among members of the Meriam people relating to rights and interests in particular parcels of land.”

192               The Rubibi applicants’ case is that the current residential use of part of the claim area is without the authority or permission of the senior Yawuru law men and is contrary to traditional Yawuru law and custom. However, the legal right of the Rubibi applicants or of the Rubibi claimant group to prevent the continuation of that use, and, if necessary, to remove the Leregon structures was not the subject of submission. A question arises as to whether those issues ought to be resolved after a determination of native title has been made or as part of the process of making that determination. Having regard to the obvious animosity that exists between the two groups, there is much to be said in favour of these issues being resolved as part of the existing dispute or controversy, rather than as a separate and subsequent controversy. In the circumstances it is appropriate to make provision for submissions on these issues, including submissions as to the manner in which the dispute is to be determined. Accordingly, my conclusions are necessarily subject to any matters that might arise as a result of those submissions.

Conclusion

193               The Rubibi applicants have established that native title exists in relation to Reserve 39631. The common or group rights comprising that native title are held by the Rubibi claimant group (including descendants of the Djugan people but excluding claimants relying solely on descent from the Goolarabooloo people) (“the claim group”) the members of whom are entitled to a determination of native title. The determination will include the following matters:

(a)    native title exists in relation to Reserve 30906 (“the area”);

(b)   the native title in relation to the area is held by the claim group, being the common law holders set out in Schedule A to the application, who are members of the traditional Yawuru community;

(c)    the native title held by the claim group confers upon them the right of occupation, use, possession and enjoyment of the area, as against the whole world, ‘for ceremonial purposes’;

(d)   the native title of the claim group includes rights of access and the following rights and interests of importance:

(i)                  rights and interest to possess, occupy, use and enjoy the area;

(ii)                the right to make decisions about the use and enjoyment of the area;

(iii)               the right to conduct ceremonies on the area, in accordance with traditional law and customs;

(iv)              the right of access to the area for ceremonial purposes;

(v)                the right to control the access of others to the area;

(vi)              the right to use and enjoy the resources of the area for ceremonial purposes;

(vii)             the right to control the use and enjoyment of others of the resources of the area;

(viii)           the right to hunt and gather for ceremonial purposes;

(ix)              the right to manufacture ceremonial artefacts, tools and weapons from the resources of the area for ceremonial purposes;

(x)                the right to maintain and protect the area, as a sacred ceremonial area under traditional laws and customs; and

(xi)              the right to maintain, protect and prevent the misuse of the cultural knowledge within the area.

The native title is subject to the following limitations or restrictions:

A.                   To the extent that any minerals, petroleum or gas within the area of the claim are wholly owned by the Crown in the right of the Commonwealth or the State of Western Australia, they are not part of the native title rights and interests held by the claim group.

B.                   The native title rights and interests held by the claim group do not include rights and interests which confer possession, occupation, use and enjoyment to the exclusion of all others in respect of any areas in relation to which a previous non-exclusive possession act, as defined in s 23F of the Act, was done in relation to the area, and, either the act was an act attributable to the Commonwealth, or the act was attributable to the State of Western Australia, and a law of that State has made provision as mentioned in s 23I in relation to the act.

194               I have concluded that the communal or group rights comprising the native title are held exclusively by members of the claim group who presently constitute the traditional Yawuru community that I have determined is descendent from the traditional community that held native title to Kunin in 1829. The Rubibi applicants’ case is that under traditional Yawuru law and custom the senior law man or men (as the case may be) have the power to determine the manner in which Kunin is to be used as a law ground, as well as the right to authorise entry upon the law ground, to persons, including members of the claim group, who are not otherwise entitled to enter.

195               I propose to direct that the Rubibi applicants bring in their proposed form of determination that gives effect to these reasons for judgment. To the extent agreement is not reached, I will give directions enabling the other parties to bring in their proposed determination that gives effect to these reasons for judgment. The determination should deal with all the matters required be stated under s 225 of the NTA. The entitlement, if any, of the native title holders, or of the senior Yawuru law man or men, to remove the Leregon structures at Kunin and to prevent unauthorised residential use or occupation of any part of the land at Kunin by members of the traditional Yawuru community or other persons are to be the subject of further submission. The Rubibi applicants are to file submissions concerning the manner in which the native title is to be held, as required by ss 55-57 of the NTA, as well as submissions in relation to any other matters arising out of these reasons for judgment.

196               Finally, it is appropriate to make three observations about the present case. First, the factual findings and the legal conclusions at which I have arrived have been made in the context of the traditional connection maintained by the Yawuru community with Kunin as an Aboriginal law ground. There are further claims being pursued before me in relation to what is claimed to be traditional Yawuru or Leregon “country”. It should be emphasised that the nature of those claims, the issues they raise, the parties and the evidence that I expect will be adduced in support of or in opposition to them will be different to the issues raised, the parties to and evidence adduced in the present claim. Thus, it should not be assumed or expected that any findings or conclusions in the present case can or will be carried over to the claims to “country” which are yet to be determined.

197               Second, the native title established to exist in Kunin epitomises one of the main reasons why native title has been recognised and protected by the common law and under the NTA. The Rubibi applicants have established that prior to, at and since the acquisition of sovereignty, the Yawuru people have substantially maintained their traditional connection to Kunin as an Aboriginal law ground. As a consequence the NTA is able to recognise and protect a key facet of the traditional law and culture of the Yawuru people

198               Third, there has been much misunderstanding and disinformation in the Australian community about native title. Although the evidence in the present case did not produce any new or startling revelations about traditional Aboriginal society, in telling their story the Rubibi applicants have articulated a cogent, rational and historically sound exposition of why a fair and just legal system does not refuse to recognise the unextinguished native title that they have established has existed since prior to European settlement of Australia. In a small but significant way that exposition has the capacity to better enable the Australian community

to understand why the common law and the Australian parliament have recognised and protected the native title held by indigenous persons in Australia.

Associate:

Dated: 29 May 2001