FEDERAL COURT OF AUSTRALIA
Rubibi Community (No 5) v State of Western Australia [2005] FCA 1025
NATIVE TITLE – competing claims for communal and group native title rights and interests – whether native title rights and interests in the respective claim areas are possessed by members of the claimant community or by members of the competing claimant group who comprise one of the clans which forms part of the claimant community
Native Title Act 1993 (Cth) ss 223, 225 and 253
Rubibi Community v State of Western Australia (No 3) (2002) 120 FCR 512 - cited
De Rose v State of South Australia (No 2) [2005] FCAFC 110 - applied
Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] 214 CLR 422 - applied
De Rose v State of South Australia (2003) 133 FCR 325 - applied
Gumana v Northern Territory of Australia [2005] FCA 50 - cited
Rubibi Community v Western Australia (2001) 112 FCR 409 - cited
Sampi v State of Western Australia [2005] FCA 777 - cited
State of Western Australia v Ward (2002) 213 CLR 1 - applied
WEH Stanner, ‘The Yirrkala Case : Some General Principles of Aboriginal Land-Holding’, paper prepared for the purposes of the land claim in Milirrpum v Nabalco Pty Ltd (1971) 171 FLR 141 and presented at the AIATSIS Seminar, February 1969
A Rumsey, ‘Language and Territoriality in Aboriginal Australia’, Language and Culture in Aboriginal Australia (M Walsh and C Yallop eds), Aboriginal Studies Press, Canberra, 1993
FRANK SEBASTIAN AND OTHERS (SEE SCHEDULE) v STATE OF WESTERN AUSTRALIA AND OTHERS (SEE SCHEDULE)
WAG 6006 and 6238 of 1998
MERKEL J
29 JULY 2005
MELBOURNE (HEARD IN BROOME)
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IN THE FEDERAL COURT OF AUSTRALIA |
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WESTERN AUSTRALIA DISTRICT REGISTRY |
WAG 6006 and 6238 of 1998 |
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BETWEEN: |
FRANK SEBASTIAN AND OTHERS (See Schedule) APPLICANTS
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AND: |
STATE OF WESTERN AUSTRALIA AND OTHERS (See Schedule) RESPONDENTS
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JUDGE: |
MERKEL J |
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DATE: |
29 JULY 2005 |
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PLACE: |
MELBOURNE (HEARD IN BROOME) |
REASONS
2. The Law 9 - 21
3. The Yawuru witnesses 22 - 25
(a) The Bugarrigarra 25 - 27
(b) ‘The law’ 27 - 35
(c) Rai and birthplace 35 - 38
(d) Yawuru language 38 - 41
(e) ‘Skin’, kinship, malinyanu and marriage rules 41 - 45
(f) Stories, songs, dances and ceremonies 45- 48
(g) ‘Bush names’, gumbali names, burial and avoidance of the names
of deceased people 49 - 51
(h) Hunting and use of ‘bush foods’ and ‘bush medicine’ 51 - 53
(i) ‘Speaking for country’ and ‘looking after country’ 53 - 58
(j) ‘Increase sites’ 58 - 59
(k) Permission to access country 59 - 63
(l) Genealogies 63 - 66
4. The Walman Yawuru witnesses 66 - 91
5. Anthropological evidence 91 - 93
(a) ‘The law’ 93 - 96
(b) Rai and other totemic associations 97 - 99
(c) Language and boundaries 100 - 101
(d) Membership of the Yawuru community 102 - 107
(e) Clan estates 107 - 135
6. Conclusions 136 - 142
1. Introduction
‘The area claimed is in the State of Western Australia in the West Kimberley Region. The boundaries are as follows:
Commencing at the eastern most northeastern corner of Pastoral Lease 3114/499 (Roebuck Plains) and extending generally southerly and generally westerly along boundaries of that Pastoral Lease to the eastern most eastern boundary of Pastoral Lease 3114/635 (Thangoo); Thence generally southerly and generally westerly along boundaries of that Pastoral Lease to the western most southwestern corner of that Pastoral Lease; Thence west to the Mean High Water Mark; Thence generally northeasterly along that Mean High Water Mark to Longitude 122.085986 East; Thence northerly to the Lowest Astronomical Tide (LAT) at Latitude 18.326161 South Longitude 122.086094 East; Thence generally northerly, generally easterly, again generally northerly, generally westerly and again generally northerly along that Lowest Astronomical Tide to Latitude 17.763873 South; Thence easterly to Latitude 17.763845 South Longitude 122.220035 East; Thence southeasterly to a western corner of Pastoral Lease 3114/499 (Roebuck Plains); Thence generally easterly along the northern boundaries of that Pastoral Lease back to the commencement point.’
2 The rights and interests claimed by the Yawuru claimants are the unextinguished rights and interests of possession, occupation, use and enjoyment, as against the whole world, of the land and waters in the Yawuru claim area on the landward side of the high water mark. In areas of the Yawuru claim area where a claim for exclusive possession is not made the Yawuru claimants claim the following unextinguished rights and interests:
(a) the right to speak for the land and make decisions about the use and enjoyment of the land and waters by themselves and others;
(b) the right to live on the land;
(c) the right to access, move about and use the land;
(d) the right to hunt and gather on the land and in the waters;
(e) the right to engage in spiritual and cultural activities on the land and in the waters;
(f) the right to access, use and take any of the resources of the land (including ochre) and control the access of others to the land and its water and resources;
(g) the right to refuse, regulate and control the use and enjoyment of others of the land and its resources;
(h) the right to care for, maintain and protect the land and waters, including places of spiritual or cultural significance; and
(i) the right to access and use the water of the land.
3 In relation to the land on the seaward side of the high water mark, but not beyond the lowest astronomical tide and the sea above it (‘the intertidal zone’), the following unextinguished rights and interests are claimed:
(a) the right to access, move about in and on and use and enjoy the intertidal zone;
(b) the right to hunt and gather in and on the intertidal zone, including for dugong and turtle;
(c) the right to access, use and take any of the resources of the intertidal zone (including the fresh water); and
(d) the right to maintain and protect the intertidal zone, including its places of spiritual or cultural significance.
4 The Yawuru community is generally defined as those Aboriginal people who are descendants of:
‘…Nyobing Babere, Chimbere Sitocay, Aloysius Louis Dolby, Jirawina, Jack and Pollyanna Mangain, Lija (wife of Phillip O’Brien Taylor), Nyilandin, Joseph Mary, Paddy Djiagween, Lucy Marcella Roe, Mary Minyal, Cecilia Ngangon, Nyingula, Annie Mawunga, Milangka, Lena Charlie, Lucia “Lija” (daughter of Bornal and Gurdan), Minbal Ester, Philomena Carter, Aubrey Kelly Edar, John Two fingers, Mary Budjinka, Yungula (first wife of George Harriot Roe), Yungula (second wife of George Harriot Roe), Tommy Roe “Guminy”, Dorothy Kelly, Lydia Kanagai, Solong Archill, Jiriny, Dockan Harry Minbal, Maggie Kanado (Kangode), Lucy Warrdarr, Philomena “Polly” Vincent (nee Pedro) and Paddy Roe.’
5 The competing claim (‘the Walman Yawuru claim’), which is made by Margaret Robinson, Edward Roe and Peter Matsumoto (‘the Walman Yawuru claimants’) on behalf of the Walman Yawuru clan, is for group native title rights and interests in respect of the land and waters (‘the Walman Yawuru claim area’) which, subject to certain exclusions, may generally be described as follows:
‘The area claimed is in the Shire of Broome, in the State of Western Australia. The boundaries are as follows:
The following is the technical description of the traditional lands and waters of the Walman Yawuru people.
The southernmost land point of the Walman Yawuru traditional lands is the point where the southern bank of the tidal flats at 434350E 7999000N reaches the Indian Ocean. From here the boundary follows a generally south easterly direction along the southern bank of the creek that forms these mud flats to the south eastern edge of the coastal silt plains, which flank the inland scrub and pindan plains. This point is at 437100E 7995650N. From this point, the boundary stretches in a generally north easterly direction along the inland edge of the coastal silt plains, past Number 3 Bore and Number 4 Bore, to turn in a generally easterly direction past Number 5 Bore to a point at approximately 448200E 7998000N and turn again in a generally northerly direction to pass Number 6 Bore to a point north west of Chain Pump Bore at approximately 450000E 8005550N. From this point, the boundary stretches in a generally easterly direction along the edge of the coastal silt plains to Coomacop Bore, from where it turns to extend in a generally north westerly direction past Cow Bore to a point at approximately 443300E 8022100N.
From this point it stretches in a generally westerly direction to a point near the north western boundary of Roebuck Plains at 247500E 8020480N, from where it angles slightly to the south of east to pass the old Broome rubbish tips and turn generally south along the western flank of Dampier Creek at 421000E 8019650N. The boundary then follows this generally southerly orientation to cross the Broome Highway to the east of Broome Airport and reach the coast of Roebuck Bay slightly to the west of Mangrove Point at 418850E 8012550N.
The Walman Yawuru traditional waters stretch from this point near Mangrove Point to the point of commencement at 434350E 7999000N and includes the coastal waters that cover the inter-tidal zone between the high-water mark and the lowest astronomical tide between the point of commencement and the point of termination.
…
The Walman Yawuru claimants also claim traditional custodianship of the traditional lands and waters formerly of the Minyirr people, the immediate western neighbours of the Walman Yawuru people.
The most easterly point of the traditional lands formerly of the Minyirr people is at the coast of Roebuck Bay slightly to the west of Mangrove Point at 418850E 8012550N, where these traditional lands abut the traditional lands of the Walman Yawuru people.
From here, the boundary stretches in a generally northerly direction along the western boundary of the Walman Yawuru lands to the vicinity of the old Broome rubbish tips at approximately 421000E 8019650N. From here, the boundary stretches in a generally south westerly direction, to pass through Station Hill and reach the coast at Cable Beach at approximately 416040E 8018000N. The traditional waters formerly of the Minyirr people are the coastal waters that cover the inter-tidal zone between the high-water mark and the lowest astronomical tide between the point of commencement and the point of termination.’
The Walman Yawuru claim area is within the Yawuru claim area.
6 The rights and interests claimed by the Walman Yawuru claimants are essentially the same as those that are claimed by the Yawuru claimants, save that they only relate to the Walman Yawuru claim area and are limited to rights and interests possessed by Walman Yawuru clan members. The Walman Yawuru clan is defined as the Aboriginal people who are descendants of Nyobing Babere and Chimbere Sitocay, both of whom are named as apical ancestors of the Yawuru claimants. One of their descendants, Michael Corpus, who is a Yawuru claimant, is said to have been banished from the Walman Yawuru clan for serious breaches of their customary laws and, as a consequence, he and his descendants have been excluded from being members of the Walman Yawuru clan.
7 After the Walman Yawuru claimants decided to oppose the claims of the Yawuru claimants, the Walman Yawuru claimants were removed as applicants and were joined as respondents. The joinder was made so that the Court could determine all disputes between the competing claimants as to the existence, nature and extent of the native title rights and interests being claimed by both the Yawuru and the Walman Yawuru claimants (see Rubibi Community v State of Western Australia (No 3) (2002) 120 FCR 512 at 517 [18]). In their capacity as respondents, the Walman Yawuru claimants opposed the Yawuru claimants’ claim on the basis that native title in the Yawuru claim area was a clan, rather than a communal, native title. However, the Walman Yawuru claimants claimed that, although they were respondents, they were nonetheless entitled to a determination under s 225(c) of the Native Title Act 1993 (Cth) (‘the NTA’) that recognised the native title rights and interests of the Walman Yawuru clan in the Walman Yawuru claim area. Since the hearing of the Yawuru claimants’ claim, the Walman Yawuru claimants filed a separate application in the Court for native title in respect of the Walman Yawuru claim area. That application is presently before the National Native Title Tribunal.
8 If the Walman Yawuru contention - that native title in the Yawuru claim area is a clan native title, rather than a communal native title - is correct, that would result in any native title rights and interests in the Walman Yawuru claim area being possessed by Walman Yawuru clan members in their capacity as Walman Yawuru clan members. It would then follow that the Yawuru claim for native title rights and interests must be refused as it is premised on the contention that native title in the Yawuru claim area is a communal native title that is people-based, rather than clan-based. Clan native title rights and interests may be contrasted with communal native title rights and interests which are possessed by members of the community in their capacity as community members. The case has been contested between the competing Yawuru and Walman Yawuru claimants, correctly in my view, on the basis that the communal and group (i.e. clan) native title rights and interests that are being claimed are incompatible. It follows that, if the Court concludes that the Yawuru claimants’ native title is a communal native title, rather than a clan native title, the Walman Yawuru claim for group native title rights and interests must be refused as it is premised on a clan native title, rather than a communal native title.
9 A separate claim was made by the Walman Yawuru claimants that they had ‘traditional custodianship’ of the lands and waters of the Minyirr clan (‘the Minyirr claim area’), who were the immediate western neighbours of the Walman Yawuru clan. The basis of the claim was formulated as follows:
‘…in the early years of the twentieth century, the Minyirr people died out. As immediate neighbours, the Walman Yawuru people had, in accordance with traditional law and custom acknowledged by both groups of people, shared knowledge of rituals associated with the land and waters, sacred aspects of the land and means of maintaining the spirituality of the land and water. With the passing of the Minyirr people, their immediate neighbours the Walman Yawuru undertook, in accordance with traditional law and custom, to maintain the spirituality of the traditional lands of the Minyirr people, by continuing the practice of rituals, by visiting and cleaning rai spirit sites and other sacred places and by continuing to harvest the fruits and other products of the land and waters in accordance with traditional law and custom. The Walman Yawuru people continue to maintain and protect the spirituality of the land and waters of their former neighbours, the Minyirr people to the present day and to instruct their children in these matters. That instruction, however, includes teaching that the lands in questions are the lands and waters of the Minyirr people and they can never become the tradition lands and waters of the Walman Yawuru people.’
The rights and interests claimed by the Walman Yawuru claimants in respect of the traditional lands and waters formerly occupied by the Minyirr clan were substantially the same rights and interests they claimed in respect of the Walman Yawuru claim area. As the Minyirr is also a clan of the Yawuru community, and as the Minyirr claim area is within the Yawuru claim area, the Minyirr claim would also fail if native title in the Yawuru claim area is found to be a communal native title, rather than a clan native title.
10 There were also issues about whether the Goolarabooloo were part of the Yawuru community and whether the Djugan were a clan of the Yawuru community or a native title holding community in their own right. Although members of the Goolarabooloo and Djugan were able to be identified as such there was a dispute about whether they were members of the Yawuru community entitled to hold native title rights and interests in the Yawuru claim area. If the Djugan were found to be a separate community, an additional question arose as to whether the northern parts of the Yawuru claim area were part of the country of the Djugan community, rather than of the Yawuru community. The evidence on those issues was strongly contested. In particular, the State of Western Australia contended that the Djugan were a separate tribe and community and that their country does not form part of the area in respect of which the Yawuru community were entitled to claim native title.
11 Both the Yawuru and the Walman Yawuru claims were opposed by the State of Western Australia, the Commonwealth and the Western Australian Fishing Industry Council (Inc) (‘WAFIC’). WAFIC’s opposition to the claims was based on its interest in protecting the intertidal zone in the respective claim areas from any native title claims. The Commonwealth’s opposition mainly related to ‘succession’ issues that it claimed arose as a result of the Yawuru and Walman Yawuru claims in respect of the areas associated with the Minyirr and the Djugan. Also, each of those respondents, the Shire of Broome and other parties presented separate cases in respect of extinguishment issues.
2. The Law
14 The native title rights and interests which the respective claimants seek to be the subject of a determination under s 225 of the NTA are defined in s 223 of the NTA, which provides:
‘Common law rights and interests
(1) The expression native titleor native title rights and interestsmeans the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
Hunting, gathering and fishing covered
(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.’
15 Section 253 of the NTA defines an ‘interest, in relation to land and waters’ to mean:
‘(a) a legal or equitable estate or interest in the land or waters; or
(b) any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:
(ii) an estate or interest in the land or waters; or
(c) a restriction on the use of the land or waters, whether or not annexed to other land or waters.’
16 Section 225 of the NTA provides:
‘A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:
(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b) the nature and extent of the native title rights and interests in relation to the determination area; and
(c) the nature and extent of any other interests in relation to the determination area; and
(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.’
17 In De Rose v State of South Australia (No 2) [2005] FCAFC 110 (‘the second De Rose decision’) at [31] and [38]-[39], the Full Court made certain observations about the distinction in s 223(1) between communal, group and individual native title rights and interests:
‘A native title determination can only be made in respect of rights and interests that satisfy each element of the definition in s 223(1) of the NTA. In particular, the rights and interests must be possessed under the traditional laws acknowledged and customs observed by the Aboriginal peoples (s 223(1)(a)). If the traditional laws and customs of the relevant Aboriginal peoples permit only those rights and interests that can be classified as “communal” to be possessed, a claim to “individual” rights and interests will presumably fail. If, however, the traditional laws and customs allow what can be classified as individual rights and interests to be possessed, and the claimant satisfies the other elements of the definition, the claim will presumably succeed. All depends on the body of normative rules of the relevant society which gives rise to rights and interests in land or waters: Yorta Yorta, at [40].
…
It is hardly likely that the traditional laws and customs of Aboriginal peoples will themselves classify rights and interests in relation to land as “communal”, “group” or “individual”. The classification is a statutory construct, deriving from the language used in Mabo (No 2). If it is necessary for the purposes of proceedings under the NTA to distinguish between a claim to communal native title and a claim to group or individual native title rights and interests, the critical point appears to be that communal native title presupposes that the claim is made on behalf of a recognisable community of people, whose traditional laws and customs constitute the normative system under which rights and interests are created and acknowledged. That is, the traditional laws and customs are those of the very community which claims native title rights and interests. By contrast, group and individual native title rights and interests derive from a body of traditional laws and customs observed by a community, but are not necessarily claimed on behalf of the whole community. Indeed, they may not be claimed on behalf of any recognisable community at all, but on behalf of individuals who themselves have never constituted a cohesive, functioning community.
The distinction between group and individual rights and interests (to the extent it matters) is perhaps more difficult to identify. An example of group rights and interests may be those held by a sub-set of a wider community, the traditional laws and customs of which determine who has interests in particular sites or areas. The members of the sub-set may or may not themselves be an identifiable community, but their rights and interests are determined by the traditional laws and customs observed by the wider community. The members of the sub-set might be expected, under the traditional laws and customs, to share common characteristics in relation to certain land or waters, such as rights and responsibilities as the custodians of particular sites. Ordinarily, it might be expected that the “group” holding native title rights and interests would have a fluctuating membership, the composition of which would be determined by the relevant body of traditional laws acknowledged and customs observed.’ [emphasis added]
18 As stated above, the Yawuru claim is a claim for communal native title rights and interests as it is claimed to be made on behalf of a community of people, namely the Yawuru community as defined in the application. The Yawuru claimants, relying on Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] 214 CLR 422 (‘Yorta Yorta’) at 439 [29], 444-445 [47] and 445 [49], claim that the Yawuru community is a body of persons united in and by its acknowledgment and observance of a body of traditional laws and customs. Those traditional laws and customs are said to constitute the normative system under which the rights and interests claimed are created. The Yawuru claim may be contrasted with the Walman Yawuru claim which is a claim for group native title rights and interests, namely those of the Walman Yawuru clan. Initially, several of the Walman Yawuru witnesses suggested that their claim to native title was based upon their acknowledgment and observance of Walman Yawuru, rather than Yawuru, traditional laws and customs. However the evidence, to which I later refer, clearly establishes that the traditional laws and customs relied upon by the Walman Yawuru claimants were the traditional laws and customs of the Yawuru community. It is also clear from the evidence that the traditional laws and customs observed by any of the clans of the Yawuru community are entirely derivative and are indistinguishable from the traditional laws and customs of the Yawuru community to which the clan belongs. Thus, the native title rights and interests claimed by the Walman Yawuru clan are claimed by the clan members as a sub-set of the wider Yawuru community, the traditional laws and customs of which determine who possesses rights and interests in particular sites and areas.
19 In De Rose v State of South Australia (2003) 133 FCR 325 (‘the first De Rose decision’) at 377-379 [159]-[166], the Full Court made the following observations about what a claimant community or group must establish in order to satisfy the requirements of s 223(1):
‘The rights and interests must have the three characteristics specified in paras (a), (b) and (c) of s 223(1) of the NTA:
(a) they must be rights and interests which are “possessed under the traditional laws acknowledged, and the traditional customs observed” by the Aboriginal peoples;
(b) the Aboriginal peoples, by those laws and customs, must have “a connection with the land or waters”; and
(c) the rights and interests must be “recognised by the common law of Australia”.
See Ward (HC) at [17];and Yarmirr at [9].
The inquiry in relation to para (a) may depend on the same evidence as is used to establish connection of the relevant peoples with the land or waters. That is because the connection must be “by those laws and customs”. Nonetheless, s 223(1) requires two distinct inquiries – one as to the rights and interests possessed under traditional laws and customs and the other as to the connection with the land by those laws and customs: Ward (HC) at [18].
The question, in a given case, of whether para (a) is satisfied is a question of fact. It requires the identification of
· laws and customs said to be traditional laws and customs; and
· the rights and interests in relation to land or waters which are possessed under those laws and customs.
See Ward (HC) at [18]. The NTA proceeds on the basis that the rights and interests with which it deals can be possessed under traditional laws and customs: Yorta Yorta (HC) at [40].
The native title rights and interests recognised by the NTA derive from the traditional laws and customs, not the common law: Ward (HC) at [20]; Yorta Yorta (HC) at [37], [45]. The role of the common law is that stated in s 223(1)(c) – that is, the recognition of the rights and interests: Ward (HC) at [20]. It follows that the claimed rights and interests must find their origin in a body of norms or a normative system that existed before the Crown acquired sovereignty over the claimed land: Yorta Yorta (HC) at [38]; Ward (HC) at [84], [85]. However, the norms or normative system need not have the characteristics of a developed European system: Yorta Yorta (HC) at [39]. The rights and interests possessed under traditional laws and customs often will not correspond to common law or European concepts: Yarmirr at [11], [14]. But, as was said in the joint judgment in Yorta Yorta (HC) at [40], this is not to deny
“…the normative quality of the laws and customs of the indigenous societies. It is only if the rich complexity of indigenous societies is denied that reference to traditional laws and customs as a normative system jars the ear of the listener.”
Since s 223(1)(a) uses “and” rather than “or”, there is no need to distinguish between what is a matter of traditional law and what is a matter of custom, provided that the rules which constitute those traditional laws and customs have normative content: Yorta Yorta (HC) at [42]. Nonetheless, because the subject matter comprises rights and interests, the rules which together constitute the traditional laws and customs under which the rights or interests are said to be possessed must be rules having normative content. Observable patterns of behaviour do not necessarily involve rights or interests in relation to land: Yorta Yorta (HC) at [42]. [emphasis added]
Upon the Crown acquiring sovereignty, the normative or law-making systems which then existed could not thereafter validly create new rights or interests. As was said by Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta (HC) at [43]:
“Rights or interests in land created after sovereignty and which owed their origin and continued existence only to a normative system other than that of the new sovereign power, would not and will not be given effect by the legal order of the new sovereign.”
[emphasis in original]
However, their Honours said at [44] that that proposition does not deny:
“the efficacy of rules of transmission of rights and interests under traditional laws and traditional customs which existed at sovereignty, where those native title rights continue to be recognised by the legal order of the new sovereign. The rights and interests in land which the new sovereign order recognised included the rules of traditional law and custom which dealt with the transmission of those interests. Nor is it to say that account could never be taken of any alteration to, or development of, that traditional law and custom that occurred after sovereignty. Account may have to be taken of developments at least of a kind contemplated by that traditional law and custom. Indeed, in this matter, both the claimants and respondents accepted that there could be “significant adaptations” [Yorta Yorta (FC) at 264 [67]]. But what the assertion of sovereignty by the British Crown necessarily entailed was that there could thereafter be no parallel law-making system in the territory over which it asserted sovereignty. To hold otherwise would be to deny the acquisition of sovereignty and as has been pointed out earlier, that is not permissible. Because there could be no parallel law-making system after the assertion of sovereignty it also follows that the only rights or interests in relation to land or waters, originating otherwise than in the new sovereign order, which will be recognised after the assertion of that new sovereignty are those that find their origin in pre-sovereignty law and custom.” [emphasis in original]
The word “traditional” in s 223(1)(a) is apt to refer to a means of transmission of a law or custom from generation to generation usually by word of mouth and common practice. But it follows from Yorta Yorta (HC) (at [46], [47]) that the concept of “traditional” laws and customs carries with it two other elements:
· an understanding of the age of the traditions, in particular a requirement that the origins of the law or custom lie in pre-sovereignty norms; and
· the requirement, flowing from the reference to rights or interests being possessed under traditional laws, that the normative system under which the rights and interests are possessed “has had a continuous existence and vitality since sovereignty”. [emphasis added]
In Yorta Yorta (HC), the joint judgment pointed to the inextricable link between a society, in the sense of a body of persons united in and by its acknowledgement and observance of a body of law and customs, and the law and customs themselves…’
20 In Gumana v Northern Territory of Australia [2005] FCA 50 (‘Gumana’) at [226]-[228], Selway J observed that the ‘connection’ with the land and waters referred to in s 223(1)(b) may be a spiritual, cultural or social connection.
21 At 380-381 [173]-[175] of the first De Rose decision, the Full Court considered the impact of European settlement on continuing observance and acknowledgement of traditional laws and customs:
‘Demonstrating the content of pre-sovereignty traditional laws and customs may be especially difficult in cases where the laws and customs have been adapted in response to the impact of European settlement. In such cases difficult questions of fact and degree emerge in determining what significance should be attached to the fact of change and in deciding what was changed: Yorta Yorta (HC) at [82].
It is important to appreciate, however, that some change to or adaptation of traditional law or custom, or some interruption of enjoyment or exercise of native title rights is not fatal to a claim: Yorta Yorta (HC) at [83]. The relevant criterion to be applied in determining the significance of a change or adaptation of traditional law or custom is whether:
“…the law and custom can still be seen to be traditional law and traditional custom. Is the change or adaptation of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples?”
(Yorta Yorta (HC) at [83]) [emphasis added]
According to the joint judgment in Yorta Yorta (HC) (at [84], [85], [87]), interruption of use or enjoyment presents more difficult questions:
“First, the exercise of native title rights or interests may constitute powerful evidence of both the existence of those rights and their content. Evidence that at some time, since sovereignty, some of those who now assert that they have that native title have not exercised those rights, or evidence that some of those through whom those now claiming native title rights or interests contend to be entitled to them have not exercised those rights or interests, does not inevitably answer the relevant statutory questions. Those statutory questions are directed to possession of the rights or interests, not their exercise, and are directed also to the existence of a relevant connection between the claimants and the land or waters in question.
Secondly, account must no doubt be taken of the fact that both paras (a) and (b) of the definition of native title are cast in the present tense. The questions thus presented are about presentpossession of rights or interests and presentconnection of claimants with the land or waters. That is not to say, however, that the continuity of the chain of possession and the continuity of the connection is irrelevant.”’ [emphasis in original]
22 On the question of biological descent, the Full Court observed at 388 [200]-[201]:
‘There is, however, nothing in the definition of “native title” in s 223(1) of the NTA that incorporates a requirement of a biological link between the claimants and the holders of native title at sovereignty. Native title rights and interests in relation to land must be possessed under the traditional laws acknowledged and traditional customs observed by the Aboriginal peoples (s 223(1)(a)) and the Aboriginal peoples, by those laws and customs, must have a connection with the land (s 223(1)(b)). Apart from the requirement in s 223(1)(c) that the rights and interests must be capable of recognition under the common law, s 223(1) does not impose limits on the content of traditional laws and customs. In particular, it does not purport to limit native title rights and interests to those which have passed to the biological descendants of the Aboriginal people who held those rights and interests at sovereignty. Claimants may rely on other means of acquiring native title rights and interests, provided that traditional laws acknowledged and customs observed allow for those means of acquiring the rights and interests. As the appellants contended, on the assumption that traditional laws and customs continue to be acknowledged and observed, it is to those laws and customs that the inquiry must be directed to identify the current holders of native title rights and interests. [emphasis added]
Of course, the claimant group must continue to acknowledge and observe the traditionallaws and customs of the Aboriginal people who enjoyed native title rights and interests at sovereignty. For that to occur there must be a sufficient link between the claimant group and the members of the society on whose traditional laws and customs the claimants rely to establish their rights and interests in relation to land.’ [emphasis in original]
23 As was also pointed out in the first De Rose decision at 395 [231]-[232], it is necessary for the claimants to identify the traditional laws and customs under which the native title rights and interests claimed are said to be possessed, and to identify the rights and interests possessed under the traditional laws and customs acknowledged and observed by the claimants. At [63] of the second De Rose decision, the Full Court stated that the link, which must be established between the rights and interests in relation to land or waters said to be possessed by a native title claimant community or group and the community’s or group’s acknowledgement and observance of traditional laws and customs, cannot be stated more precisely than that:
‘…the community or group must show that it has acknowledged and observed those traditional laws and customs that recognise them as possessing rights and interests in relation to the claimed land or waters.’
24 The Full Court observed at [64] that:
‘It must always be a matter of fact and degree as to whether the community or group has acknowledged and observed the traditional laws and customs on which it relies to establish possession of native title rights and interests.’
25 The critical question arising in the Yawuru and the Walman Yawuru claims is whether, applying the above principles, under the traditional laws and customs of the Yawuru community the claimant community, or the claimant group, possesses the native title rights and interests claimed in respect of the respective claim areas. The claimed rights and interests must find their origin in a body of norms or a normative system that existed when the Crown acquired sovereignty over the claim areas. In Western Australia the date of sovereignty is 1829 (see Rubibi Community v Western Australia (2001) 112 FCR 409 (‘Rubibi’) at 417 [21]). Of course, the impact of colonisation on the Aboriginal people in and around the Broome area has resulted in significant alterations to the traditional laws and customs observed by them. However, as was emphasised at 378 [164] of the first De Rose decision, account may be taken of alterations to and the development of traditional laws and customs after sovereignty, at least where the alterations or developments are of a kind contemplated by the laws and customs. Thus, the fact of significant alterations to laws and customs after sovereignty does not prevent those laws and customs from giving rise to native title rights and interests, provided they are possessed under presently acknowledged and observed laws and customs that can still be characterised as ‘traditional’ laws and customs.
26 The above observations relate to s 223(1)(a) and (b) of the NTA. The only issue raised by the parties in respect of s 223(1)(c) relates to extinguishment which, as explained in [12]-[13], I am not determining at this stage.
27 In order to apply the above principles, which can now be taken to be well established, it will be necessary to consider the laws and customs relied upon to establish the native title rights and interests claimed, to determine whether they are traditional laws and customs that have normative content and, if so, to determine whether the native title rights and interests possessed under those laws and customs are possessed by the Yawuru community or by any of the clans constituting the Yawuru community. Thus, although the particular question for decision at this stage relates to the seemingly discrete issue of whether native title in the respective claim areas is clan or community based, that question cannot be answered without consideration being given to all of the laws and customs relied upon to establish that title. On a superficial approach to those questions it might be expected that the answer is to be found in the laws and customs that relate to who can speak for the relevant areas and whose permission is required to enter those areas. However, as was pointed out in the second De Rose decision at [60]-[61]:
‘…given the centrality of the relationship between Aboriginal people and their country, any dichotomy between traditional laws and customs connected with rights and interests possessed in land and waters and those that are unconnected with such rights and interests may be difficult to establish.
Professor W E H Stanner, in his Boyer Lectures entitled “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 forms part of the set of constants that give Aboriginal persons their affiliation with other Aboriginal groups, links their whole network of relationships and provides the foundation for the complex structure of their social groups.’
28 Professor Stanner had stated that the Aboriginal doctrine of ownership and possession:
‘…formed the anatomy of a plan of reference for personal identity, group membership, kinship relationships, descent, marriage, religious and some non-religious observances, and even some mundane transactions of life.’ (WEH Stanner, ‘The Yirrkala Case : Some General Principles of Aboriginal Land-Holding’, paper prepared for the purposes of the land claim in Milirrpum v Nabalco Pty Ltd (1971) 171 FLR 141 and presented at the AIATSIS Seminar, February 1969, p 7)
30 The present case is not an exception to the above descriptions. Indeed, the evidence to which I later refer establishes that there are few, if any, traditional laws and customs that have no direct or indirect connection with the rights and interests being asserted. Adopting Professor Stanner’s formulation, that evidence establishes that, under the traditional laws and customs of members of the Yawuru community, their homeland ‘forms part of the set of constants that give [Yawuru] persons their affiliation with other Aboriginal groups, links their whole network of relationships and provides the foundation for the complex structure of their social groups’. Thus, in the present case there is not a simple dichotomy between traditional laws and customs connected with the communal or group rights and interests claimed, and those that are unconnected with such rights and interests. Accordingly, it is necessary to consider all of the evidence in relation to the traditional laws and customs relied upon by the parties to establish their respective claims. That evidence will be relevant to the following questions which must be considered in order to ascertain whether communal or clan native title rights and interests are possessed in the respective claim areas:
1. Whether the Yawuru community is a recognisable body of persons united in and by traditional laws and customs which, since sovereignty, have constituted the normative system under which the native title rights and interests in issue are being claimed?
2. Whether, under the traditional laws and customs acknowledged and observed by the Yawuru community, native title rights and interests in relation to the respective claim areas are possessed by:
(a) the Yawuru community; or
(b) the Walman Yawuru clan;
and, if so, whether the Yawuru community or the Walman Yawuru clan (as the case may be), by those laws and customs, has a connection with the claim area claimed by that community or group?
3. Whether the rights and interests possessed are:
(i) communal native title rights and interests of the kind claimed by the Yawuru claimants; or
(ii) group native title rights and interests of the kind claimed by the Walman Yawuru claimants?
31 The questions set out above can be answered without determining the following issues:
(a) the precise criteria for membership of the Yawuru community and, in particular, the circumstances in which non-Yawuru persons may become members by adoption or incorporation;
(b) whether the Djugan and Goolarabooloo form part of the Yawuru community and, if not, what are the consequences of that finding;
(c) whether the traditional laws and customs of the Yawuru community provide for succession to tribal or clan estates and, if so, whether such a succession has occurred;
(d) the nature and extent of the native title rights and interests possessed by the title holders or the areas in respect of which a native title determination may be made; and
(e) the native title rights and interests that have been extinguished.
32 The Yawuru claimants adduced a substantial body of evidence to the effect that the native title rights and interests they claim in relation to the Yawuru claim area are possessed, under the traditional laws and customs acknowledged and observed by the Yawuru community, by the Yawuru community, rather than by any of the clans (such as the Minyirr or Walman clans) constituting the Yawuru community. That evidence was supported by the expert evidence of the anthropologist called by the Yawuru claimants, Dr Palmer (‘Palmer’). The Yawuru claimants also tendered certain evidence adduced, and relied on certain findings made, in Rubibi in which I made a determination of native title in respect of the ‘law ground’ at Kunin. The evidence and findings relied upon, which are set out in the schedule of evidence filed on 17 April 2003 by the applicants, is to be understood and considered in the context of the different issues to be decided, and of the substantial body of further evidence adduced, in the present case. Also, I am mindful of the fact that the Walman Yawuru claimants were not parties to Rubibi, although their representative did appear and rely upon certain Walman Yawuru witness statements at one stage of the hearing. Nonetheless, as I later explain, a number of the observations and findings in Rubibi are amply supported by the further evidence adduced in the present case.
33 The evidence relied upon by the Walman Yawuru claimants to establish their claim was the evidence given by eight Walman Yawuru witnesses and the evidence of an anthropologist, Rory O’Connor (‘O’Connor’), who was called by the Walman Yawuru claimants to give evidence as an expert witness.
34 Although there were a number of other respondents, only the State of Western Australia adduced any significant evidence in opposition to the respective claims for native title rights and interests. The State of Western Australia relied primarily on the evidence of an anthropologist, Professor Sansom (‘Sansom’), who was called by the State of Western Australia to give expert evidence.
35 There were few objections to the evidence of the lay and the expert witnesses. Rather, it was accepted that it was a matter for the Court to give that evidence the weight that was appropriate in the circumstances. Finally, as the Aboriginal witnesses were generally addressed by reference to their first names during the hearing I will continue to refer to them by reference to those names in these reasons for judgment.
36 Before turning to the evidence it is appropriate to make certain observations about the reliability of the ‘oral history’ evidence of indigenous witnesses in a native title case. As was stated in the joint judgment in the High Court in Yorta Yorta at 449 [63], it is an:
‘…impermissible premise that written evidence about a subject is inherently better or more reliable than oral history on the same subject.’
37 I considered that issue in Rubibi at 422 [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 256 – 257 [348]-[350]:
“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” (1998), Archives and Manuscripts 26:2 at p 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 v British Columbia (1991) 79 DLR (4th) 185 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 rights litigation have had to “come to terms with the oral histories of Aboriginal societies”. See also Mason v Tritton (1994) 34 NSWLR 572 at 588-89 per Kirby J.”’
38 In contrast with the approaches set out above Professor Stanner cautioned against an oral history ‘making the past consistent with an idealised present’. (WEH Stanner, On Aboriginal Religion, University of Sydney, 1989, p 242)
39 In considering the evidence I have taken the above observations into account.
3. The Yawuru Witnesses
40 The Yawuru claim is that the Yawuru claim area has been occupied from time immemorial by members of the Yawuru community and their ancestors and that during that period the Yawuru community has continued to practice traditional laws and customs in relation to Yawuru country. It is claimed that the Yawuru community, by those laws and customs, has maintained a connection with the land and waters in Yawuru country despite the impact of colonial settlement in Broome, particularly since its gazettal as a town in 1883. Broome had by that time become popular for pearling, which resulted in many Aboriginal people being forced to work as divers on the luggers. Pastoralism also impacted heavily on the Aboriginal population, as did the government policies which excluded many Aboriginal people from the Broome township until the 1950s and led to the removal of many Aboriginal children to missions, such as that at Beagle Bay.
41 The Yawuru claim area is largely made up of certain pastoral leases and unallocated Crown land and reserves. It may generally be described as commencing down south at Bungarrangarra, going north to Willie Creek and then east to Garawan. The Yawuru claimants’ evidence is that south of Bungarrangarra is Karajarri country, north of Willie Creek is Jabirr Jabirr country and east of Garawan is Nygina country. These boundaries were said to have been created by the Bugarrigarra. Joseph ‘Nipper’ Roe, a senior Yawuru ‘law man’, described Yawuru country as follows:
‘Well, this is Yawuru country, you know, the law was set down from the Bugarrigarra time; creative beings that came and left and gave people the law and culture, you know? Gave us the skin groups, so within that particular area, you know, this is how we’re related to one another, you know, and shared with one another…’
42 Membership of the Yawuru community was claimed to be primarily by way of ambilineal descent from Yawuru ancestors. Adoption and incorporation into the Yawuru community are also claimed to give rise to membership. Much of the evidence of the Yawuru witnesses did not conflict with the evidence of the Walman Yawuru witnesses. For example, the Yawuru witnesses generally accepted that members of the different families or clans comprising the Yawuru community held special attachments to particular areas of country. Those attachments were often based on a mother’s or father’s association with certain parts of country, a birthplace, a rai place or a particular responsibility in respect of ‘the law’ at a particular site. Although there was disagreement about certain events and incidents the main conflict related to whether the attachments conferred the right to exclude non-clan members from the clan areas unless permission was given to enter those areas.
43 The evidence of the Yawuru witnesses was given in English. On two occasions male restricted evidence was given and restrictions were placed on the distribution of the record of that evidence in order to ensure that gender and other restrictions required under customary law were observed. At the request of the Yawuru claimants, throughout the hearing a screen was used to prevent mothers-in-law and sons-in-law attending the hearing from seeing each other, as malinyanu requires that mothers-in-law and sons-in-law not look directly at each other. In total 18 witnesses, who identified as Yawuru persons, were called to give evidence and five witnesses from surrounding Aboriginal communities also gave evidence in support of the Yawuru claim. Although criticisms were made of the evidence of some of the Yawuru witnesses I am of the view that they endeavoured to give their evidence honestly and to the best of their recollection of the relevant events, many of which occurred long ago.
44 Traditional Aboriginal connection with the areas in and around Broome was discussed in Rubibi. However, the discussion was largely confined to the connection that was relevant to the use of Kunin as a ‘law ground’. In Rubibi, I found that Kunin had been used as a traditional Aboriginal ‘law ground’ at and since 1829 and that the Yawuru community, who did not include the Goolarabooloo, had established a traditional connection with Kunin. In that context I concluded at 442 [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.’
45 In the present case the continuing acknowledgement and observance of traditional law and custom by the Yawuru community was contested. Sansom, in his main report, considered whether the current Yawuru society is a community that acknowledges and observes the laws and customs of the pre-contact society. He accepted that the current community of people identifying as Yawuru would constitute such a community provided that they acknowledge and observe the traditional laws and customs. Sansom claimed that the kinship system has been modified over the years, leading to a cognatic system, but that these revised arrangements do not necessarily break ties with land. Sansom also stated that ‘[m]aintenance of the separate northern and southern traditions of ceremony and myth are evidence of continued observance of the laws and customs which connected people to the claim area at the time of sovereignty.’ Sansom pointed out that there is evidence of ‘caring for country’ and the passing on of knowledge concerning country, along with continued connection to the land through rai. In considering whether the acknowledgement and observance of the traditional laws and customs has continued substantially uninterrupted since sovereignty, Sansom stated:
‘In general, my interpretation is that the people have continued to be true to an evolving set of laws and customs that have developed in order to allow Yawuru to adapt to post-contact conditions.’
Sansom noted that ‘certain traditional laws and customs have fallen into desuetude including ‘increase sites’, marriage by bestowal, and the endangerment of the Yawuru language. However, traditional ‘male initiation ceremonies are still performed and secret sacred knowledge is still transmitted according to traditional conventions’ and ‘[s]acred objects are stored and maintained.’ However, prior to giving evidence Sansom gave a notice of change of view, which led to a number of his earlier views being modified.
46 O’Connor enumerated what he regarded as indicia of continuity of traditional law and custom. These include: the use of aboriginal names; the ‘skin section’ system; practice and transmission of ritual knowledge and practices based on traditional law and custom; handing down of traditional skills; the use of natural resources; maintenance of strongly held traditional beliefs; and maintenance of connection with ancestors. All of these indicia were regarded by O’Connor as fundamental to continuity of traditional law and custom. O’Connor also includes other indicia that he sees as important, but not fundamental, to establishing continuity of traditional laws and customs namely: marriage rules; avoidance of names of the dead; secrecy; consciousness of language; knowledge of Dreaming stories; maintenance of the traditional authority structure; knowledge of water resources; use of fish traps; and knowledge of estate and local names.
47 It is in the above context that the evidence of the Yawuru witnesses in relation to their observance of traditional law and customs is to be considered. However, before doing so it is convenient to set out briefly their roles or backgrounds. Frank Sebastian (known as Gajai), Francis Djiagween (known as Lulga), Patrick Dodson and Joseph ‘Nipper’ Roe are senior Yawuru ‘law men’ who gave evidence. Elsie Edgar, Thelma Saddler and Susie Gilbert are senior Yawuru ‘law women’, although only Elsie Edgar gave evidence. Other Yawuru witnesses were Cissy Djiagween and her daughter Mary Tarran, Doris Edgar and her son Thomas Edgar, Neil McKenzie, Kevin Puertollano, Michael (known as Micklo) Corpus, Alberta bin Omar, her sister Madge Yu and Simon Williams. Joseph Roe, Teresa Roe and Richard Hunter also gave evidence. Both Joseph Roe and Richard Hunter are senior ‘law men’ for ‘the law’ referred to as the northern law or the northern tradition. Only Joseph Roe, through his father, has Yawuru ancestry. Richard Hunter gave evidence on country but was not otherwise called to give evidence. Five ‘law men’ from surrounding tribes also gave evidence: Steven Possum from Karajarri country to the south; Peter Clancy from Mangala country to the south-east; Misha Peters from Nyangumarta country further south; Peter Francis from Nygina county to the north east; and Paul Sampi from Bardi country to the far north. The country between Yawuru and Bardi country is Jabirrr Jabirrr and Nyul Nyul country. A number of the witnesses had also given evidence in Rubibi, which they adopted for the purposes of these proceedings.
48 The evidence given by the Yawuru witnesses about traditional laws and customs was more detailed than the evidence of the Walman Yawuru witnesses in relation to those matters. It is appropriate to set out the Yawuru witnesses’ evidence under the relevant topic headings.
(a) The Bugarrigarra
49 The traditional laws and customs claimed to have been observed and acknowledged by the Walman Yawuru clan and the Yawuru community were derived from the same source, namely the Bugarrigarra (the Bugarri as the Walman Yawuru witnesses called it). The evidence establishes that the Bugarrigarra is at the core of the cultural and spiritual existence of the Yawuru community and of the respective clans comprising the Yawuru community. Indeed, a common element in the evidence of the Yawuru and the Walman Yawuru witnesses was their belief that the Bugarrigarra was the source of all of their traditional laws and customs.
50 In Rubibi at 434 [113]-[114], I accepted the following evidence, which was adopted at the present hearing, in relation to the Bugarrigarra:
‘[Patrick Dodson] described the Bugarrigarra as the period in which all the features (including soaks that provide water and enable people to inhabit a location) were placed upon the land; and when the law, the kinship structures and languages were given to the people inhabiting that land. Mr Dodson said it was a period that goes back to before anything that can be thought of.
…Mr Dodson explained the Bugarrigarra story associated with 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.’
51 A similar explanation was proffered at the present hearing by Palmer, who stated that the Bugarrigarra was:
‘…a time before present when the earth, as we know it today, was modified by the actions of creative beings who roamed the land and performed deeds. These are now related in narrative, song and enacted in ritual. The creative beings also brought the language which is spoken by each community of people, named animals, birds and natural features, and brought customs, beliefs and religious observances. They were, then, creative, not just in the sense that they modified the landscape and rendered the physical world as we know it today, but because they also brought all aspects of practice, belief, custom and observance that can be described as culture. This period … is also a continuum of time, extending to the present, so the spiritual potency of the bugarigara is manifest today as it was in the far past.’
52 Palmer further explained the Bugarrigarra:
‘There is believed to have been a time before now which was both a enduring spiritual time, but also something which continues into the - into the present. It was a time during which extraordinary spiritual things happened which are now believed to provide the basis, the fundamental, the very foundations of the society that I studied. And there are many other aspects to this belief, but they're all wrapped up in this single term, “Bugarrigarra”, for this community… It’s perhaps the one most single - well, I - perhaps it’s hard to say that it’s the most single, but it’s a most important and fundamental aspect of the applicants’ belief.’
Later, Palmer said:
‘I suppose the other thing about Bugarrigarra is that it – it defines and informs, in my observation, the applicants’ views about the essential spirituality of the natural world around them, and of their points of - well, their - their articulation with it, their interaction with it.’
(b) ‘The law’
54 The teaching of the instructions laid down by the Bugarrigarra is referred to as teaching ‘the law’. Patrick Dodson detailed some of the rules of the Yawuru community that are laid come down as ‘the law’ by the Bugarrigarra. He stated:
‘There are rules about how you look after the country when you visit, there are rules that relate to the taking of things from the country and from the sea, you know, and not to exploit those resources, whatever they are, whether they’re fish or animals. There are rules about what you can - when you should kill things or not kill things and that is when you can - you know, when there are rules that the seasons dictate to us. There are rules about excluding people, so we can exclude people from this country. There are rules that people are able to - there’s people who are able to make a choice between whether they want to follow the Yawuru law, the southern law as you’ve been referring to or whether they want to send someone to the northern law. You can make those sorts of choices. That’s not a problem for us.
And similarly you - if - there are rules about your mother-in-law and how you behave towards her or don’t. There are rules for yourself to uphold the laws, otherwise as a lawperson with knowledge of things, you yourself can be punished. The country punishes you, and we often see that in terms of storms or big rain or, you know, winds and things like that, that there’s people who don’t live in accordance with the laws. There are punishments that arise from the country itself that can arise internal to the law. There are rules about that, so how you argue that out, who argues for you or doesn’t argue for you. There are rules about who you admit into the law and who you don’t.
…
There are rules that are a part of not only behaviour but also of rights, rights to do things on the country like fish and hunt and all that.’
55 Two legal traditions, which lay down ‘the law’, are claimed to be applicable in Yawuru country. Each of the traditions involves the creation of the world by mythological creatures or heroes who gave the people their ‘law’, waterholes (soaks or jilas), ‘law grounds’, songs, ‘skin sections’ and languages. Patrick Dodson outlined the path of the southern tradition in the Yawuru claim area in a restricted exhibit. The southern tradition is ‘the law’ that is generally practiced by the Yawuru, Karajarri, Nyangumarta, Nygina and Mangala people. The northern tradition is generally practiced by the Bardi, Nyul Nyul, Jabirrr Jabirrr and Nyambal people. The southern tradition (southern law) may be referred to in Yawuru country as the Yawuru law. The northern tradition is often called Bardi law. The ‘law bosses’ for the southern tradition in Yawuru country are Felix Edgar, Frank Sebastian (Gajai), Francis Djiagween (Lulga), Joseph ‘Nipper’ Roe and Patrick Dodson. The ‘law bosses’ for the northern tradition in Yawuru country were said to be Joseph Roe, Richard Hunter and Phillip Hunter.
56 The two traditions are kept separate. Joseph Roe said that the laws sit side by side without overlapping because ‘Bugarrigarra make them like that, we’re just following Bugarrigarra.’
57 While the Bugarrigarra and many of the basic rituals, customs and laws it prescribes are common to the northern and southern traditions, the two mytho-ritual traditions differ in their origin, being the journeys and undertakings of the mythological creators of the respective traditions. However, support for the claim of the Yawuru claimants that both traditions were observed in the same country is to be found in R Piddington’s article, which contains observations about the initiation ceremonies under both traditions in the country of the Karajarri people, which is to the south of the Yawuru claim area. (R Piddington, ‘Karadjeri Initiation’, Oceania, vol 3, no 1, 1932, p 46)
58 Men can go through both northern and southern law. Gajai said ‘[i]t has always been okay for a man to go through more than one law…The two laws don’t mix but they are respected in this country.’ Patrick Dodson said ‘[i]t’s not a unusual thing for a Yawuru man to go through northern law.’ Yawuru community members who have been through both laws include Lulga and Patrick Dodson’s grandson (by ‘skin’ and nephew by blood), Sooty Pigram. Several men who are now deceased, have also been through both laws, namely Paddy Djiagween, Bandak Bernard, Peter Kajit, Johnny Peters, and Stanley Djiagween, as well as Lulu and Paul Sampi.
59 Paul Sampi, a senior Bardi ‘law man’, described how the northern tradition of ‘law’ travels along two paths. The first path, Ungui, which is the first stage of ‘law’, travels down from Bardi country along the east coast of the Dampier Peninsula from Swan Point to the mouth of the Fitzroy River at Langey Crossing, then west to Garawan and then to Willie Creek. From there, it travels back to the east to Garawan and then north to La Djardarr Bay. The other part, Ululong, the second stage of ‘law’, travels down along the west coast of the Dampier Peninsula from Swan Point through to Wapunu in Karajarri country. Paul’s evidence was that, after World War Two, Bardi men, who were living and working in Broome and wanted to be able to practice Bardi law in Yawuru country, asked permission of the Yawuru ‘law men’ to start Ululong at Four Mile. Paul was living in Broome in 1949 and, as he had been through Ungui, was able to go through the second stage of the southern law. He says that ‘[i]n those days people went through both law[s].’
60 There is also a third tradition, which starts at Bilinnguru (Hidden Valley) in Yawuru country and goes out into the desert. This tradition is like a ‘song line’ and is known as the Wanji or Dingarri. Peter Clancy, a Mangala man who gave evidence about the Wanji, stated that it speaks ‘Yawuru language in Yawuru country, Karajarri language in Karajarri country, and Mangala language in Mangala country. I know the songs for the Wanji right through.’
61 There was some confusion as to how the Yawuru claimants relied upon the northern tradition in making out their case. Ultimately, they accepted that the normative system upon which they relied was the southern tradition, but they claimed that under that tradition there was a recognition and acceptance of the overlapping role played by the northern tradition in the Yawuru claim area.
62 The management of the religious life, rituals and inductions, and the maintenance of ritual objects and songs, is referred to as ‘law business’. Induction into the various stages of ritual knowledge is referred to as ‘going through law’. A boy’s ‘skin brothers’ or grandfather jamuny side are responsible for making arrangements to ‘put the boy through the law’. It is referred to as being ‘grabbed’. A person cannot apply to ‘go through the law’; it is a matter that the ‘law bosses’ decide upon. Both the southern and northern traditions have two stages. Under the southern law, a man ‘goes through’ the first and second stage law (each of which has a gender restricted name). Only the men who have ‘gone through’ all of the stages of the ‘law ceremony’ can acquire advanced traditional knowledge of the law.
63 Gajai explained the obligations of ‘law men’ as follows:
‘Well, lawmen under Yawuru law we’re there to protect our rights and make sure the same ceremony and the law keeps on going and trying to teach our young people the law and culture of that land that our forefathers left before they passed away and trying to make them understand this, that we’ve been here before white man.’
64 A ‘law man’s’ duty is to ensure that ‘the law’ is respected and traditions are followed. This may require consultation from time to time with ‘law bosses’ in other people’s countries who share the traditions. Patrick Dodson explained that, when he was giving evidence, the ‘law men’ from surrounding countries that share the same ‘law’ as the Yawuru, the southern tradition, were ‘sitting here because they need to hear what I’m saying so if I say something wrong, won’t be this Court that fix me up; it will be those people.’ The evidence also established that it was the ‘law bosses’ responsibility to speak for the law. Thus, as Patrick Dodson explained, members of the community are to listen to and be guided by the senior ‘law men’. However, Patrick made it clear that, although there is mutual respect and consultation between the ‘law men’ responsible for the two traditions in relation to matters of mutual concern, the ‘law men’ are separately responsible for their respective ‘law grounds’.
65 No Yawuru boys or men have been ‘through the law’ at Kunin since Joseph ‘Nipper’ Roe and Patrick Dodson went ‘through the law’ in 1994. However, when asked if this meant that ‘the law’ is not in use, Patrick replied it did not mean that at all:
‘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.’
66 Patrick noted that ten years is ‘a relatively short period in … our culture because the law was put there from the Bugarrigarra.’ There are also a number of ‘law grounds’ in Yawuru country that are no longer used as ‘law grounds’, but Gajai said they remain ‘law grounds’ as ‘[t]he land is still strong. The places are still strong.’
67 The issue of whether Kunin had fallen into disuse as a ‘law ground’ was considered in Rubibi at 427-429 [80]-[85]. I concluded at 429 [84] that, notwithstanding gaps in use, the ‘continuing traditional use of Kunin as a law ground had been substantially maintained.’ I pointed out the dangers of such issues being decided on the basis of a ‘historical snapshot’ of the cessation of traditional practice or observance of traditional laws and customs. I am not satisfied that the evidence in the present case is such as to justify a different finding to that made in Rubibi. In that regard it is relevant to note the evidence to the effect that, although no further initiation ceremonies have been conducted at Kunin, that situation is expected to alter. Also, evidence was given of the continuing storage of important objects at Kunin as well as of activities designed to protect it as a ‘law ground’.
68 Both men and women can ‘go through the law’, but much of the detail of religious ceremony is gender restricted. Women are prohibited from ever gaining certain knowledge. In particular, women should not question men about ‘law matters’ that go into the detail of ‘the law’. For example, during the hearing it became clear that a number of witnesses were uncomfortable with being asked questions by female counsel. When Joseph ‘Nipper’ Roe was asked about the ‘law ground’ at Darbanngangaba:
‘MS WEBB: Yes. And can you tell me how you got that responsibility to look after that area?
NIPPER ROE: Well, I don't want to go - - -
MS WEBB: No.
NIPPER ROE: - - - into the law side of it again, because - because it’s not really right that a lady should ask me.
…
HIS HONOUR: Well, Nipper, there’s two possibilities. If it’s because you’re being asked about secret men’s business, that is a matter for restricted evidence, but the other is that if it’s embarrassing for you to be asked the question by a woman, would it be less embarrassing if it was asked by me?
NIPPER ROE: Well, we got law womens here and, you know, it’s not their rights even to talk about or question a man about anything to do with the law.
HIS HONOUR: Yes. I understand - - -
NIPPER ROE: And for them to listen to it, you know, it’s not - you know? It's quite annoying.
HIS HONOUR: Yes. So - - -
NIPPER ROE: Or distressing.
HIS HONOUR: - - - it’s something you’d rather talk about in a restricted session, or you can only talk about in a restricted session - - -
NIPPER ROE: Yes.
HIS HONOUR: - - - where there are only men. Is that correct?
NIPPER ROE: Yes. Yes.’
69 The Yawuru women endeavoured to avoid anything considered to be ‘men’s business’ and, as with men who haven’t ‘been through law’, they avoid the ‘law grounds’. An example of the women declining to be present when ‘law business’ is discussed occurred during the evidence of Edward Roe, one of the Walman Yawuru witnesses. Edward was asked in re-examination if he was an initiated man, and he explained that he was not, as he had been circumcised as a baby. He was then asked to tell the Court what he knew about boys being ‘grabbed for the law’. At this point all the Aboriginal women in the room where the evidence was being heard walked out, apparently in response to ‘men’s business’ being discussed in their presence. Another example is the prohibition against women observing boys ‘going through law ceremonies’. Joseph ‘Nipper’ Roe gave evidence that he ‘was told about a time when Thelma’s sister saw men during ceremony; she was very sick after that happened. That was her punishment. No-one did anything to her; the law made her sick.’
70 Joseph ‘Nipper’ Roe stated that the belief is also held that if people show no respect for country, ‘things might accidentally happen to these people’. A person who visits a place which should not be visited may get hurt or sick, and there is nothing that anyone can do to stop that from happening because, as Joseph ‘Nipper’ Roe explained, ‘that’s been set from the Bugarrigarra time, you know, that be left in the country to protect the country’. Phillip Corpus gave evidence that Ludo Dolby and two other boys became sick when they visited the burial grounds of Walman Yawuru people.
71 Felix Edgar gave evidence in Rubibi that before he went through the law, he was not allowed to go to the ‘law ground’ at Kunin. A number of other witnesses gave evidence about how they would avoid sacred sites and ‘law grounds’. Cissy Djiagween says people avoid Gantheaume Point because it’s a very significant and dangerous place from the Bugarrigarra. Doris Edgar gave detailed knowledge about the location of ‘law sites’, and identified places where women are not permitted to visit. In particular, she mentioned Buga Wamba as a very powerful and dangerous ‘men’s business place’. She said that ‘[t]hey can sing that rock and the rock would kill someone.’ Elsie Edgar also gave evidence that it was a very dangerous place, and that one woman who never believed the stories went and sat on top of the rock, and ‘both her hands and feet got tangled up and she had to be taken to the hospital.’ Mary Tarran also avoids Buga Wamba, claiming that it is a ‘bad man dreaming place’, and she tells her children not to go there.
72 Gajai said that when he was younger his mother and grandmother would tell him to stay away from the ‘law ground’ at Kunin, because it was a dangerous place. He was ‘grabbed for law’ when he was about 17 or 18 by his jamuny (grandfather) by ‘skin’. He had to walk for three days along the coast and had ceremonies at a number of places in Karajarri country, before coming back to Broome for a ceremony at Kunin. He was initiated at Kunin, and then he stayed in the bush for around four weeks. Later, in 1963 or 1964, Gajai went through another ‘law ceremony’ to be made a ‘law man’. Gajai gave evidence that the ‘law men’ will need to hand down ‘law responsibilities to suitable young men’. He said that ‘[w]e have been talking about who might be suitable but no decisions have been made yet.’ Gajai noted that ‘[t]he proper way is for boys to be put through law at the end of the year, so I reckon at the end of the year … boys will go through.’
73 Lulga has ‘been through’ both northern and southern law. In 1960, when he was 14, he ‘went through’ Ungui, part of the northern law in a ceremony at One Mile. About four years later Lulga ‘went through’ the second stage of the northern law, Ululong, and a few months later he ‘went through’ the second stage of the southern law. His evidence was that he ‘went through’ both laws as his mother was a Bardi woman and his father was a Yawuru man. Lulga said that ‘[i]t’s good to go through as much law as you can. People will then recognise you.’ Lulga is now one of the senior ‘law men’ of Yawuru law.
74 Neil McKenzie’s evidence was that when it was the right time for him to ‘go through’ the law, there was trouble over Kunin so he did not ‘go through’ first stage law. Subsequently, his ‘bosses’ ‘arranged an alternative introduction to the law in 1999’. When asked what this meant, he responded ‘I can’t tell you. I’m not qualified. It’s not my job. I only do what they tell me.’
75 Kevin Puertollano has not ‘been through the law’, and his old uncles used to tell him that he could not go near any of the ‘law grounds’ in Yawuru country. He still avoids certain places today because he was told they were dangerous for him to go near. In relation to sacred sites, he stated that ‘song trails’ and other significant areas should not be built on because ‘somebody could get hurt and it could be not one of them but could be one of the people, the family who are connected to that area, could be.’ When he was asked what makes a place significant, Kevin said ‘the Bugarrigarra put a place there and made it a place for people.’ Thomas Edgar has ‘been through’ Yawuru law, in a ceremony at Kunin.
(a) that the evidence established that Kunin has been used and continues to be used as an Aboriginal ‘law ground’ since 1829 in accordance with Aboriginal law and custom (at 429 [85]);
(b) the Yawuru community has established a traditional connection with Kunin by reason of their use of Kunin, since 1829, as a ‘law ground’ in accordance with traditional law and custom (at 432 [101]); and
(c) the Yawuru community claiming to hold native title in respect of the ‘law ground’ at Kunin has continued to maintain its traditional connection with the ‘law ground’ since 1829 (at 445 [161]).
‘The holding, passing on and receiving of the Yawuru community’s traditional knowledge and law (including rai) [was] as laid down in the Bugarrigarra.’
(c) Rai and birthplace
80 ‘Conception rai’ can be described as a spirit that resides in the country until the time when it enters a woman as the essence of the child to whom she is to give birth. The location of a person’s rai is often dreamt of by the father before the child is born. The ‘conception rai’ comes from the Bugarrigarra. Joseph ‘Nipper’ Roe described the traditional belief as a belief that everyone has a rai place where their spirit came from, and when they die their spirit ‘goes back to the Yardangarl place where the free spirits live’ to await another rebirth, so that the person becomes part of the country. Joseph Roe, when asked how Jilbangun came to be his rai place, explained that ‘I come straight from Bugarrigarra, spirit and heartbeat, and when I die I'll come back same way again and I’ll stay here.’
81 A person has a gumbali rai when the connection is with a particular animal or bird.
82 In Rubibi, I stated at 433-434 [111] that:
‘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.’
83 In the present case additional evidence was given about a person’s rai place. In Rubibi, Joseph ‘Nipper’ Roe’s gave evidence that his rai was dreamt of by his father who saw a spirit child coming from Yalanbanany, and then knew that his wife would conceive and his rai would be from Mari Mari, because it is a rai place in that area.
84 Patrick Dodson’s grandfather, Paddy Djiagween, told Patrick that his rai is the pelican from Marar. Patrick explained that in Yawuru country:
‘You can speak to your ancestors because when people die, their rai goes back to their rai place, and their spirit goes up to the sky. For this reason, people associate people with particular areas. The country is thus alive. I
can talk to ancestors as though they are present in my country now. I know they are in the country. This makes me aware, and I behave responsibly. I am not alone. My ancestors’ spirits and the law oversee my actions. My behaviour in my country is governed by the law. Everything is connected. In other people’s country, I am aware of their old people and respect them, too.’
Patrick explained:
‘The country is alive…The country is - has got a spirit. It’s alive. It’s living. People’s spirit go back there. Rai goes back there. People’s rai are waiting to come into existence through a new birth. The country has Stories about how it came into existence, from the Bugarrigarra, and how it - and the community, the people, the Yawuru people, have stories themselves about the country, what happened when they went there, where they camped, what fish they caught, what they didn’t catch; all those sorts of things.’
Patrick said that knowing his rai place gave him a sense of belonging. He also said he knows that when he dies his rai will go back there and wait to be regenerated. He said that the origin of one’s rai is a point of location and a strength, as it means that there is a particular part of Yawuru country that has a unique relationship with that person, but he added that it doesn’t mean that one doesn’t feel strongly about the rest of Yawuru country.
85 Cissy Djiagween stated that she ‘holds the story’ for Julan, the name of the ‘Porpoise Dreaming’ given to her by her grandparents. She claims to have a mark under her chin like the hole the porpoise has on the top of its head. Cissy explained how her son’s rai comes from Rug, her brother Joe’s rai comes from the rapids at Gantheaume Point, and her father Bandak’s rai place was Minyirr, at the point where the lighthouse is. She stated that her sister Antonia had gumbali rai from a barramundi. She explained that her uncle speared a barramundi in Beagle Bay Creek and its spirit went to her father and in turn to Antonia. When asked what happened to that spirit when Antonia died, Cissy replied:
‘So when she passed on, I went to see her and while leaning over her, when she was lying I felt something hit me, and I thought I was getting sick, but seven months after I find out I was pregnant for my youngest daughter and she carries that same mark what my sister had, so this rai business is not a game, it’s true. It’s living truth for our people, our generation.’
86 Joseph Roe’s rai place is Jilbangun, which gives him the responsibility to look after that place, for the next generation and when he dies he said he will go back to there. Gajai’s rai place is from Yardugara, which gives him a special association with the southern coastal area of Yawuru country. Doris Edgar said her rai is at Gulubariny, which is a nyiyarbi place (‘increase site’) for kangaroos. Gulubariny is in Karajarri country. Doris Edgar’s daughter, Janet, has her rai place in Kirrkirrgun. Elsie Edgar’s rai comes from Wirriwirri. She stated that her father went past there and when he returned to his home he dreamt he saw Elsie eating gandaragu at Wirriwirri. She said that her father told her mother he had seen Elsie and then her mother became pregnant. One of Elsie Edgar’s brother’s rai place is Mujaragub, where his father dreamed that he came out of a tree his father was chopping there. Bidarigub is her sister Thelma Saddler’s rai place. Thelma has a mark of a binyira (spear) on the back of her neck which she said is there because her father speared a stingray when her mother was pregnant and her father dreamt of that place. Felix Edgar, Elsie Edgar’s brother, has his rai place at Jamaragabu, where his father ‘dreamed him’. Felix Edgar’s evidence was that his father was out shooting bidjada (emu) and shot one in the leg, and when he was born he had the same mark in the place where the emu was shot, being a line of warts down his leg (gundang). Felix said his father had that dream before Felix was born. Francis Djiagween’s rai is the jalangnardi (goanna).
87 Neil McKenzie did not know where his rai was from because no one had ever told him. He said that only the ‘law bosses’ could tell him. Kevin Puertollano was not told if his rai came from a specific place but believed it may have come from Lake Eda. Thomas Edgar was never told if he had a rai. Michael Corpus said he does not have a rai. Alberta bin Omar does not have a rai and only one of her children has a rai. She said her son Greg’s rai comes from Minyirr, as her husband Jack McKenna dreamt Greg’s rai when she was pregnant. Alberta’s sister, Madge Yu, does not have a rai and neither do her children. Simon Williams does not have a rai nor do any members of his family.
88 Although a person’s birthplace is not as important as their rai place, it is regarded as providing an important emotional and spiritual tie to that part of country. Joseph ‘Nipper’ Roe gave evidence that he was born at Jambaranganjarl and, as a result, is a custodian for that area and has to look after it by visiting the area to make sure it doesn’t wither away and die. His brother also had responsibility for that area because he was born there, but he has now passed away. Patrick Dodson was born in Broome, and said that this gives him a ‘strong attachment here, strong sense of my obligations and my responsibilities and rights in this part of the world’. Thelma Saddler, who gave evidence in Rubibi, said that she can ‘speak for’ Thangoo because she was born there. Although Gajai was born in Broome, his ancestors were born at Yardugara and consequently he claimed to have a special attachment to Yardugara.
89 While the significance of the place of birth has diminished for a number of the witnesses it remained a factor, among others, that contributed to a belonging to Yawuru country. Joseph Roe’s grandfather (who was often referred to in the hearing as ‘Lulu’ after his death), had his rai in Yawuru country, was responsible for Yawuru law and was born at Jamanngunun in Yawuru country. Gajai stated that the ‘fact that [Lulu] was also born here makes a big difference’.
(d) Yawuru language
91 Hosokawa stated:
‘1.1.3 Local groups and dialects of Yawuru
1.1.3.1 Local groups
Although the distinction between local subgroups of Yawuru is virtually defunct today, the following names of local groups, which were probably based on patrilineal clans, have been elicited [from information provided by Paddy Roe, Jacky Edgar and Marty Gilbert]: …
dyukun (Jukun) – north-west coast of Broome, around Cable Beach area
minydyirr – minynyirr (Minyjirr) – Broome township area
walman (Walman) – Fisherman’s Bend area up to Crab Creek
marangana – marangan (Marangana) – north-eastern inland (Derby side)
kardarru (Kadarru) – (south-)eastern inland
marrmarrmanyurdany (Marrmarrma) – south of Crab Creek area
burrany (Burrany) – coastal area north of Thangoo
dyulbayi (Julbayi) – area around Thangoo
k*arraldyunu (Garraljunu) – south of Thangoo
lankandyunu (Lankanjunu) – southernmost of the Yawuru country
birrmanan (Birrmanan) – south-eastern side (bordering Nyikina country)
and a few others (without designation) in the eastern inland region. Of these local group names only Jukun and Yawuru appear in the linguistic literature.
Although there seems to be some confusion among informants as regard the distinction between Jukun and Minyjirr (or Minynyirr, Minyirr), it is surmised that Jukun is the name for the people originally inhabiting the area around the Cable Beach area (north-west of Broome), while Minyjirr refers to the area around rubibi (or Kennedy Hill in the north-east, within the Broome township) and the people in that area.
Jukun, Minyjirr and Walman groups and their language are jointly called “Big Yawuru” by Julbayi informants, while the Julbayi people call themselves “Small Yawuru”. The latter folk category also encompasses Garraljunu and Lankanjunu groups in addition to Julbayi. When Aboriginal people in Broome today (1.3.2) mention the name “Yawuru”, it usually refers to the “Small Yawuru” groups. Those may be designated in geographical terms as Southern Coastal Yawuru.
1.1.3.2 Dialects
There seem to be three principal regional dialects of the Yawuru language:
1) Jukun [Djugan] (or Northern), spoken by Minyirr, Jukun and Walman groups;
2) Julbayi [Djulbayi] (or Southern Coastal), spoken by Julbayi and other coastal groups including Burrany, Garraljunu, Lankanjunu and possibly Marrmarrma;
3) Marangan (or Eastern Inland), spoken by Marangana, Kardarru and other inland groups.’
(K Hosokawa, ‘The Yawuru language of West Kimberley: a meaning-based description’, PhD thesis, Australian National University, 1991, pp 4-5)
92 The State of Western Australia’s expert linguistic witness in Rubibi accepted Hosokawa’s findings. His evidence was that Yawuru ‘appears to have been spoken continuously in the Broome area from before contact with Europeans until the present’.
93 Only a few Yawuru people now speak the Yawuru language. In Rubibi at 437-438 [124]-[127], I made the following findings, which are amply supported by the evidence in the present case:
‘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.
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.
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).
The evidence to which I have referred was not seriously in dispute.’
94 In Rubibi, Felix Edgar gave evidence in English, but needed the assistance of Gajai to translate some of the questions for him. Gajai can speak some Yawuru, but understands more than he can speak. Doris Edgar speaks and understands Yawuru, and teaches the Yawuru language to primary school students. Elsie Edgar speaks Yawuru and is teaching her grandchildren to speak Yawuru. Elsie Edgar also teaches Yawuru language to children at both primary school and high school. She also teaches bush hunting techniques and teaches younger people how to dance in corroborees. Her daughter, Susan Edgar gave evidence in Rubibi that she can speak Yawuru and works as an interpreter. Her evidence was that she learnt Yawuru:
‘[from her] mother and the other old people in my family. My mother Elsie, her sister Thelma, and her brother Felix, all speak Yawuru at home. We are teaching the children to speak it. Language is a very important part of our culture.’
95 Francis Djiagween speaks and understands Yawuru language, and talks to Felix and Elsie Edgar, Thelma Saddler and Doris Edgar in Yawuru language ‘all the time’. Neil McKenzie speaks Yawuru with his children who are taught it at school by Doris Edgar. He says his children speak better Yawuru than he does. Thomas Edgar said he used to speak Yawuru fluently as a child, but now only speaks a little bit of Yawuru.
(e) ‘Skin’, kinship, malinyanu and marriage rules
97 Palmer described the importance of the kinship or ‘skin system’ relationships between Yawuru people, stating that ‘[e]stablishing a person’s social category is an essential step in placing them within the broader society and community.’ Palmer also stated that gumbali relationships, and the use of a deceased person’s name as a younger person’s ‘bush name’, establish ‘an indissoluble link between an individual and a senior member of the community, honouring the latter and establishing the former through the adoption of a name, as a successor to a significant senior member of the group.’
98 In Rubibi at 436-437 [119]-[122], I made the following findings, which were amply supported by the evidence at the present hearing:
‘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.
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.”
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.
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.’
99 Under the Bugarrigarra, there are four ‘skin groups’ for the Yawuru people: burungu; banaga; barjarri; and garimba. The division of ‘skin groups’ gives rise to a set of relationship rules between people, including rules about who to marry and who to avoid. Joseph ‘Nipper’ Roe, who is married ‘right way’, described ‘skin groups’ as follows:
‘Your skin creates relationships within the community. It lets you know who are your brothers, sisters, aunties, uncles, mothers, fathers and grandparents are. You can tell who is the right way for you to marry and who is your mother-in-law. The way you act with a person depends on your skin relationships. My mother-in-law and I cannot see other. In Yawuru we are called malinyanu for each other. If men are my brothers I can have a joke with them; if they are my uncles I have to respect them and I can’t argue with them. The skins come from the law and so do the rules about the relationships between the skins.’
‘Skin groups’ also inform the roles people play on a ceremonial occasion. Joseph ‘Nipper’ Roe’s evidence was that people who marry ‘wrong way’ by marrying someone from the same ‘skin side’ would in ‘the olden days’ be punished, perhaps by being speared in the leg, because it is said to disrupt the whole system. However, a child of a wrong way marriage can be given a ‘skin group’, so that the child will then know how to relate to others and would also know the role they are to play in ceremonies.
100 Patrick Dodson is married ‘right way’. He claims that the kinship rules create certain relationships which can be relationships of respect or relationships of fun. He said that ‘[w]ho might be responsible for straightening another person out will depend on skin relationships, closeness of biological descent, responsibility for law and age.’
101 ‘Skin’ and kinship relationships also require that mothers-in-law and sons-in-law cannot look at each other. As Patrick explained in Rubibi:
‘I can’t call my mother-in-law’s name. I can’t mention her name. I don’t even talk about her. I got to keep away from direct line of sight, keep away from wherever they sit down, they got to sit away from me. We still follow that law.’
102 Gajai gave evidence in Rubibi that ‘wrong way’ marriages have always been unacceptable, but that such marriages are more of a recent problem:
‘…because there are too many people from different country, and ever since kids been to school and what - wasn't being taught by their people who they are and who their relations are, yes they could be falling in love and - down south or wherever they go to school or wherever they meet, yes.’
103 Cissy Djiagween married her husband Stanley ‘right way’. Doris Edgar was also married ‘right way’ to her promised husband; she was his pilyurrjangka. Her promised husband had another woman before marrying Doris, but she said:
‘Even though he had another woman, he still had to go with me because I was promised to him. He got no say with that first woman. If he doesn’t do it, he will get growled by the old people. He got to take her or they will get a hiding. If a man and woman who are not promised run away together, it doesn’t matter how long they are away, they will still get a hiding. That is our law, from the Bugarrigarra.’
During Doris Edgar’s evidence she was asked to state her relationship ‘through skin’ to a large number of Yawuru people, and was able to give the ‘skins’ of older members of a family group, and therefore the ‘skins’ of their children.
104 Doris Edgar also gave evidence that if someone was promised to be married and ran away, or married ‘wrong way’, they would get ‘a hiding’. She was asked if it was important in ‘the old days’ to go ‘right way’ and she responded:
‘DORIS EDGAR: Yes, very important; you got to go right way - - -
MR KING: Got to go right way?
DORIS EDGAR: - - - because the children got to come right way.
MR KING: Yes.
DORIS EDGAR: That’s how the Aboriginal people is, they straighten everything up.
MR KING: Yes. What about nowadays, is it still important?
DORIS EDGAR: It’s still important for us - - -
MR KING: Yes?
DORIS EDGAR: - - - but the young people go so different.’
Doris was asked if people still get ‘a hiding’ now for marrying ‘wrong way’ and she responded that she had not seen it occur because ‘you can’t get hiding now because you got the policemen round; they'll put you in.’
105 Elsie Edgar was married ‘right way’ to her husband, but he was not her promised husband. However, in the end ‘the old people said it was alright for us to live together, because we were still the right way for each other.’ Asked about ‘right way’ and ‘wrong way’ marriages, Elsie Edgar replied:
‘ELSIE EDGAR: Can’t marry in Aboriginal way wrong marriage.
MR KING: Can’t marry wrong way?
ELSIE EDGAR: No.
MR KING: What happens if you marry wrong way?
ELSIE EDGAR: Well you get in trouble.
MR KING: With whom?
ELSIE EDGAR: Through Aboriginal law.
MR KING: Yes, get in trouble, and what happens?
ELSIE EDGAR: Go fight and all that.
MR KING: Is that still important nowadays?
ELSIE EDGAR: No, I don’t think now; too much kartiya [white people] way.
…
ELSIE EDGAR: Policemen and all that.’
106 Kevin Puertollano was never told what his ‘skin’ was, and therefore was not able to say if his marriages were ‘right way’. Thomas Edgar knew his ‘skin’ was barjarri, but married ‘wrong way’ because he married a European. Michael Corpus does not know his ‘skin’, and is in the process of researching it. Simon Williams also does not know his ‘skin’ and said that he does not know the ‘skins’ of the members of his family.
107 Alberta bin Omar is banaga ‘skin’ and married her promised husband, Jack McKenna; a ‘right way’ marriage. Through a gumbali ceremony, Alberta was made the mother of her daughter’s gumbali, Wittadong, and therefore became malinyanu to Wittadong’s husband. During the course of her evidence she wore a scarf over the side of her face to ensure she didn’t see Wittadong’s husband. Alberta bin Omar had other children both before, and after, marrying her promised husband, but she said that it is allowed under Yawuru laws and customs to have two husbands as ‘[o]ne is the old man that you're promised to that you look after… And then you can have another husband … A younger husband.’ Not all of her marriages were ‘right way’ marriages but she said that, where necessary, each was nominally allocated the same ‘skin’ as her promised husband, so that those marriages would be ‘right way’ marriages.
108 The Yawuru ‘skin groups’ are common to those who share the southern tradition: namely the Karajarri, Nygina, Mangala and Nyangumarta people. They all share four ‘skin groups’, the names of which may change when the language changes but which have equivalents in the language for each country. For example, Nyangumarta people have four ‘skin groups’ named milingga, burungu, garimarra and banaga.
(f) Stories, songs, dances and ceremonies
110 Stories, songs, dances and ceremonies, which tell the story of the creation or of the adventures of spiritual creative beings, are said to come from the Bugarrigarra. The applicants’ witnesses told some of those stories. A song story was performed for the Court by Elsie Edgar. No dances or ceremonies were performed.
111 A number of witnesses recalled attending traditional ceremonies on many occasions when they were younger, but now such ceremonies are rare. The last ‘law ceremony’, which was held in November 1994, put Patrick Dodson and Joseph ‘Nipper’ Roe ‘through the law’. There have also been corroborees at the ‘Stompin Ground’, which is a music festival held in Broome featuring songs and dancing. Elsie Edgar gave evidence that she and her family dressed in traditional clothes and paint for the ceremony and opened the festival, going first because ‘we’re the Yawuru people’.
112 Other ceremonies include gumbali ceremonies, as well as a ceremony described by Joseph ‘Nipper’ Roe in Rubibi:
‘If a person from a neighbouring group who is not well known to our people but came to live or to marry or to do ceremonies, the ceremony of Milyangar would be held. This person would stand up with all of our people around and the old and knowledgeable people would call out his or her name and how they were related to us, their skin group, and their place in ceremony.’
However, that ceremony is no longer held.
113 Richard Hunter told the court of certain Bugarrigarra stories on country at points around Broome. Most of the stories related to rocks located on the coast.
114 Cissy Djiagween knew the story of Juru, the ‘Dreamtime Serpent’, as it was a story with which her grandmother’s had a connection. Cissy Djiagween gave evidence that she now talks to Juru. She said:
‘Old Daisy Lungunun for husband was staying at Elsie’s. When I went to her house Elsie told me that that morning he had asked her who was for Minyirr. He told her she had to get that person to go to Minyirr and quiet that Juru down because the little spirit people, rai, had been stirring him up. I went there and saw that the water was rising; I couldn’t believe it. I talked to those rai, I told them to quiet down, let him have his peace, and I saw the water quieten so that Juru could go to sleep. I can do this; I am the right person for that place. If I didn't do this there would have been a big disaster, maybe cyclone or something. I am responsible to keep that rai quiet so they don’t disturb that Juru.’
During cross-examination Cissy refused to say anything more about the story about Juru, saying ‘I’m not going to say no more because this is really - that story was supposed to be for the family.’ When asked which family she was referring to, she said ‘for the people of Minyirr Janu, Yawuru country’. Cissy Djiagween also related the story for Yilagaramiya, which is ‘the home of the dogs’:
‘They are dogs of the Bugarrigarra and they protect the people of Broome.’
115 Mary Tarran, Cissy Djiagween’s daughter, mentioned the story of the Yilagaramiya, but said that her mother should be the one who decides whether or not to talk about it. Mary gave evidence about how her grandfather, Paddy Djiagween, told her the story about Marala being a ‘feeding ground’ for the Bugarrigarra giant called Randigunya from Marar. In the story, when people would hear Randigunya coming, they would race to get shellfish and hide on the hill. Neil McKenzie also gave evidence in cross-examination that he has heard this story.
116 Gajai told the story at Yidamun about a mabarn or Jalingur man who put a spell on the Djaminjunu tribe who were coming to attack the Yawuru, turning them into stone. Gajai was only able to tell the Court part of the story, as it was a story that elders were entitled to tell. Elsie Edgar also gave evidence about the story, as did Joseph ‘Nipper’ Roe.
117 Doris Edgar gave evidence in Rubibi that she teaches primary school students Yawuru language and corroboree songs. At this hearing, Doris Edgar related her knowledge about jilas and camps situated in Yawuru country. She also noted that there are Dreamtime stories for Marimarigun about the tide coming in and trapping people who were then saved by a giant, but she didn’t elaborate on this story.
118 Joseph ‘Nipper’ Roe gave evidence that:
‘There is a dreamtime story about a giant man who lived at Mari Mari. Two boys were walking around spearing flounder in the shallows of Roebuck Bay when the tide came in and cut them off. The giant saved them and took them to Mari Mari Island. After a while, they were frightened and homesick and he put them on his shoulders and carried them back to the mainland.’
119 Elsie Edgar also gave evidence about significant Yawuru sites on Yawuru country. Elsie says that she has danced during some parts of ‘law ceremonies’ away from the men’s ‘business ground’. Elsie said she teaches dances and songs to children in Broome. She also teaches language and hunting, fishing and searching for bush food. She gave evidence that she knows the songs for a number of places on Yawuru country and, when the Court was on country taking evidence at Yidamun and Miriny Gujara, Elsie Edgar sang parts of a song for one of those sites. At Darbanngangaba, she noted that she does not sing about that place as it is a men’s ‘law ground’ and women and children are not allowed to go there. Elsie also gave evidence about a Bugarrigarra story at Mudanungul, about tall men with long tails who live there and go fishing across the marsh. She said that sometimes people see these men and get so scared they run away. Elsie also mentioned the Bugarrigarra story about Buga Wamba, which means ‘bad man’ in Yawuru. The story was that an old man with his three wives (who were sisters), travelled along the coast. When they stopped at Buga Wamba, they were turned into stone. Buga Wamba was said to be a dangerous place from which everyone should stay away. For example, a woman who did not believe the story, and visited Buga Wamba was said to have been taken to hospital afterwards.
120 Neil McKenzie knew a number of Bugarrigarra stories that he had been told by his Gaga, Susie Gilbert’s husband. He now tells his children many of these stories. He goes to Gantheaume Point to tell his children the story of Marala, a creative being (the ‘emu man’) who left footprints behind. Marala told the people where they could find food and water. Neil also knows the story for Yinara and Buga Wamba as detailed above, but he said he cannot tell the story for Buga Wamba because it is ‘men’s business’. He was able to tell a story about three sisters, Gudidi Ngurnu, who were turned to stone because they were watching Buga Wamba when they shouldn’t have been. He gave evidence that there is a whirlpool (jindirribalgun) at Simpson’s Beach (Bidelgabur) connected to a whirlpool near One Arm Point. He said his Gaga told him that the old people used to sing at the whirlpool area then walk on the reef across Roebuck Bay to Thangoo. Neil also told stories about a hairy woman giant who lives in Dampier Creek. He claimed that near Thangoo, belonging to Goldwyer or Wungoodoomidany, there is a hairy man with a tail. At Gandiliba, near Crab Creek, there is a Bugarrigarra story about a woman who spilt water she was carrying, creating, creating waterholes. Neil McKenzie also told a story about a fight between a sea snake and a land snake on the rocks called Juru, near Gandiliba. Asked if he ‘held’ these stories. Neil said he did not but, because he knew the story, he had the right to tell it and pass it on to the next generation. However, Neil stated that, even though he believed the stories, he wasn’t able to fully tell certain stories because other people ‘held’ those stories. He said ‘I’ve enlightened people about it, give them my lighter version, but that’s all I say because it’s not mine.’
121 Patrick Dodson said that he doesn’t know all of the songs of the Yawuru, but that Felix Edgar, the most senior ‘law man’, did. He said that when Yawuru men get together, they sing important ceremonial songs.
(g) ‘Bush names’, gumbali names, burial and the avoidance of the names of deceased people
123 It is traditional for children to be given ‘bush names’ (usually the name of a deceased person), which create a link between an individual and a senior member of the community. Joseph ‘Nipper’ Roe’s ‘bush name’ is Ngulibardu, which was the name of his paternal grandfather who had the same ‘skin’ as Joseph ‘Nipper’ Roe. Patrick Dodson’s ‘bush name’ is Jagun, which was the Aboriginal name of his maternal grandfather, Paddy Djiagween. Cissy Djiagween’s ‘bush name’ is Mangian, which is a name she obtained from an ancestor, and which she has passed on to another girl in her family. Cissy said that all her children have Aboriginal names. Mary Tarran’s ‘bush name’ is Gunid and three of her four children have ‘bush names’, which Mary gave to them. It is usual for elders to pass on ‘bush name’, but, Mary gave each of her children their ‘bush name’. She described this as being ‘a modern concept’. Frank Sebastian’s ‘bush name’ is Gajai, and he has given all his children ‘bush names’ from his ancestors. Doris Edgar’s Aboriginal name is Ngaljan, which was the name of her gumbala. Doris gave evidence that she had two gumbala (persons with the same Aboriginal name). Felix Edgar’s Aboriginal name is Gumin. Elsie Edgar’s Aboriginal name is Nyijalyja, which came from the gumbala for her family. She had a ceremony with her gumbali at the time that she was given that name. When Elsie Edgar was asked if all her children had ‘bush names’, she responded that they did as did her ‘grandchildren [and] great-great grandchildren’. Elsie’s daughter, Susan Edgar who gave evidence in Rubibi, has Yilybiri as her Aboriginal name. Francis Djiagween’s ‘bush name’ is Gumin like Felix Edgar, and his nickname is Lulga, which means dry like a stick or piece of wood. Kevin Puertollano’s ‘bush name’ is Agamor. His child and nieces and nephews all have ‘bush names’ that are Bardi names, except for one Yawuru name, Mingbal. Thomas Edgar’s ‘bush name’ is Unda which was given to him by his Karajarri grandmother. Michael Corpus’ ‘bush name’ is Jalaroo, but none of his children have ‘bush names’. Alberta bin Omar does not have a ‘bush name’, but her children do. Those names were given to her children by her Yawuru father and her Yawuru husband, Jack McKenna. Madge Yu’s ‘bush name’ is Gadjeput, which is a Bardi name. She obtained the name when she ‘went through’ a ceremony at Beagle Bay. Simon Williams does not have a ‘bush name’, nor do any members of his family. Neil McKenzie has given some of his children ‘bush names’, as approved by the Yawuru elders.
124 As explained later in these reasons, the Walman Yawuru witnesses have ‘bush names’, with all but Richard Corpus having been given those names by their grandmother, Mimi. Margaret Robertson’s ‘bush name’ is Jaguli, meaning small lee shell. Edward Roe’s ‘bush name’ is Jangu, meaning oyster. Jack Roe’s ‘bush name’ is Mangalagun which is also the name of the place where he was born. Alf Corpus’ ‘bush name’ is Gubni and his brother Philip Corpus’ ‘bush name’ is Binggy and his nickname is Pinky. Elsta Foy’s ‘bush name’ is Bilari, meaning pelican. Peter ‘Nugget’ Matsumoto’s ‘bush name’ is Bombida, which is a kind of lizard. Richard Corpus’ ‘bush name’ is Jabada, also a lizard, a name his sister and her husband gave to him. Some of Margaret Robinson’s grandchildren have ‘bush names’, based on the names of animals or objects. Margaret stated that her grandchildren’s ‘bush names’ were Ngobing and Sitocay.
125 ‘To be made gumbali’ with someone else, that is, to get the same Aboriginal name as another Aboriginal person, a ceremony occurs where gifts are exchanged. Doris Edgar described a gumbali ceremony as follows:
‘When you are a child and made gumbala for someone, you have to go and sit on that person’s lap on a big blanket and you have to give each other presents. All the family will come and put presents on the ground for the two of you. People get painted up for this ceremony. I did this with my gumbala and we did this for my two boys, Joe and Peter, when they were smaller.’
126 Cissy Djiagween’s husband Stanley, the son of Paddy Djiagween, was gumbali with Jimmy James, who had the same ‘bush name’, Dowadji. He went through a jugurung ceremony for this.
127 Alberta bin Omar’s daughter Janice was made gumbali for a woman named Wittadong from Karajarri country. When Janice was five or six there was a ceremony on Kennedy Hill, called gunjuring. Wittadong and Janice were covered during the ceremony so that they could not see one another:
‘My sister-in-law and Wittadong’s mother started chanting, calling ‘Gujarra Wittadong’, which means ‘two Wittadong’, over and over again. Then they uncovered Janice and Wittadong so they could see each other for the first time. They hugged each other and exchanged their gifts, boomerangs, clothes and money.’
128 There was also some evidence given about gumbali rai, which links a person’s rai to a particular animal that belongs to the country. Cissy describes it as the rai you get from the spirit of your ancestors. Cissy Djiagween’s sister Antonia had a gumbali rai relationship with barramundi. She said if she ate that fish it would make her sick. Cissy said that her uncle had that gumbali rai before Antonia. Teresa Roe gave evidence that her gumbali rai is the bindanj (stingray), and she cannot eat it without getting sick. There was also evidence about gumbali gumbali relationships, which is said to give a person a special relationship with their rai, which allows them power over the species in question. For example, an old Yawuru man on Roebuck Plains Station was said to be gumbali gumbali for goanna and as a result he was said to have the power to regulate the supply of those reptiles and could therefore allocate or withhold them at will. Doris Edgar’s gumbali gumbali is the kangaroo, which meant that she has a special relationship with that animal.
129 There was little evidence given about burial practices. In 1999, ancient human remains were found at Mangalagun, and were reburied by members of the Yawuru and Walman Yawuru communities. There was a dispute over the precise roles of the two communities, in this reburial which, for present purposes, I need not resolve.
130 The Yawuru have an important custom of not saying the name of a person, including their Aboriginal name, for a period of time after that person’s death. The Yawuru witnesses sought to adhere to this rule. Important examples were the references to ‘Susie Gilbert’s husband’ (the ‘old man who disappeared’) and to Joseph Roe’s grandfather (who was often referred to in the hearing as ‘Lulu’ after his death ).
(h) Hunting and use of ‘bush foods’ and ‘bush medicine’
132 Patrick Dodson stated that Yawuru people can hunt anything in the sea and on the land, and call the fruits of their labour ‘bush tucker’. They also produce ‘bush medicine’, and use trees for making objects. He said this was a right of the Yawuru people in Yawuru country flowing from the Bugarrigarra.
133 Cissy Djiagween gave evidence about going fishing and crabbing in the mangroves and on the beaches when she was young, but she says that now ‘[y]ou buy them in shops’. Mary Tarran gave evidence about fishing and gathering cockles, ‘bush tucker’ and ‘bush medicine’. She said that when she was younger, her whole family went out fishing; the men speared stingray and the women collected ‘bush tucker’. Joseph Roe gave evidence that just about every weekend, or whenever he has a chance he goes to Jamanngunun (Sheep Camp) to ‘hunt, have a rest here, cook my feed here, have a camp here, then go back.’ Gajai goes crabbing, and also goes hunting for dugong and turtle along the coast near Thangoo. Gajai said that most of his family go hunting and fishing in Yawuru country, and commented:
‘I’m not going to buy a fish from the shop when it costs about five bucks when you can get fish down at the creek or down the beach there for nothing. You just throw your line in.’
Gajai brought a dead goanna to the Court during the hearing. Doris Edgar’s evidence was that she takes her children fishing so that they will learn ‘to fish the proper way’ and she teaches them how to obtain honey, kangaroo, goanna and ‘bush medicine’. Neil McKenzie gave detailed evidence that he went fishing all around Yawuru country and speared stingray, collected ‘bush tucker’ and used trees for medicine or to make spears or boomerangs. He claimed to have learned about ‘bush tucker’ and ‘bush medicines’ from his ‘old people’. He said it is now his job to teach his children about those matters. He has made fish traps and has shown his children how to make them. They catch crab and catfish using the traps. Neil described in detail his knowledge of ‘bush medicine’, which he says he uses to treat various wounds and illnesses. However, Neil said that he does go to the chemist if he has enough money.
134 Kevin Puertollano said that when he was young he used to travel all around Broome to hunt and fish. He said that he still gathers bush fruit and gubinj and uses some ‘bush medicine’. Thomas Edgar hunts all over Yawuru country for goanna and turkey, and collects ‘bush tucker’ and uses ‘bush medicine’. He still uses a spear and net to fish, and goes spearing around Cable Beach and Riddell Beach in the stingray season, which is just before the wet season. Thomas Edgar still makes boomerangs. He mostly uses them for clapping sticks, but also for killing turkey and ducks. He also makes nulla nulla to hunt goanna. Thomas’ evidence was that he still uses ‘bush medicine’ whenever he gets sick, although he also uses ‘western’ medicine.
135 Michael Corpus was taught about hunting and ‘bush tucker’ by his Yawuru father, and still goes hunting for turkey and goanna with his family about five or six times a season. He teaches his children Yawuru culture, including how to hunt and fish and prepare and cook the catch in the traditional way. He also teaches them how to get ‘bush tucker’. Michael says he eats ‘bush tucker’ throughout the six Yawuru seasons.
(i) ‘Speaking for country’ and ‘looking after country’
137 Palmer noted the Yawuru community’s claim to have rights to live on Yawuru country, travel freely across it, use all of its resources, and exclude others. He observed, however, that ‘rights in country’ carry duties to look after country:
‘The claimants entertain the notion that there is a symbiotic relationship between them and their land: the land provides for the people, but the people must exercise care, restraint and protect the land. This is frequently referred to as “looking after” the country. Activity on country must take special account of the spiritual potency of the land. Care must be taken that action (of oneself or others) does not have unforseen and bad consequences as a result of inadvertent trespass upon the spiritual essence of the land. Failure in the exercise of duty to country can also result in physical harm to the land owner; for it is believed that damage to land has a consequential effect on those who are embodiments of the country.’
138 In the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in the High Court case, State of Western Australia v Ward (2002) 213 CLR 1, reference was made at 64-65 [14] and 93 [88] to the significance of “speaking for country’ and ‘looking after country’:
‘As is now well recognised, the connection which Aboriginal peoples have with “country” is essentially spiritual…It is a relationship which sometimes is spoken of as having to care for, and being able to “speak for”, country. “Speaking for” country is bound up with the idea that, at least in some circumstances, others should ask for permission to enter upon country or use it or enjoy its resources, but to focus only on the requirement that others seek permission for some activities would oversimplify the nature of the connection that the phrase seeks to capture.
…
It may be accepted that …“a core concept of traditional law and custom [is] the right to be asked permission and to “speak for country””. It is the rights under traditional law and custom to be asked permission and to “speak for country” that are expressed in common law terms as a right to possess, occupy, use and enjoy land to the exclusion of all others …The expression of these rights and interests in these terms reflects not only the content of a right to be asked permission about how and by whom country may be used, but also the common law’s concern to identify property relationships between people and places or things as rights of control over access to, and exploitation of, the place or thing.’
139 In the second De Rose decision at [103], the Full Court explained the significance of claimants discharging their responsibilities to ‘protect country’ after a native title claim has been made. As the Full Court pointed out, such actions are relevant to the questions, which are posed by s 223(1)(a) of the NTA, of the present possession of rights and interests and of the present acknowledgement of traditional laws.
140 Certain people have special responsibilities in relation to parts of Yawuru country by reason of their rai place or birthplace. For example, Joseph ‘Nipper’ Roe’s rai place, Mari Mari, is very important to him, as is Jambarrnganyjal where he was born. He said that this gives him a special connection to those places and he has to look after them. As he explained in his evidence in Rubibi, which he adopted at the present hearing:
‘…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. I believe it is important for me to go to Mari Mari and Jambarrnganyjal to look after them. By looking after them I mean keeping the Dreamtime stories about those places alive visiting the sacred places, as well as birth places and rai places, and preventing anything that would destroy them.’
In looking after these places, Joseph ‘Nipper’ Roe said he is doing so on behalf of the ‘supernatural being of that area’, the ‘Creator being’. He said that if the country is not looked after it goes wada jarinyu; it gets lonely and there is hardly any wildlife on it anymore. However, Joseph ‘Nipper’ Roe stated that that has not happened to Yawuru country because Yawuru men and women look after it by performing ceremonies, visiting places and attending to ‘increase sites’. As a senior Yawuru ‘law man’, he gave speaking for ‘law’ at Kunin as an example of ‘speaking for country’.
141 Patrick Dodson explained his role in ‘looking after country’ as follows:
‘Well, I sit as someone who has responsibility under that law, a responsibility to not only try and maintain the law, make sure that it's - it's kept and practised, but also to make sure that the country is looked after - that is, that it's not desecrated by developments, that we try to preserve as much of the - the topography of the place - that is, the trees and the surrounding landscapes - as - as much as we can, in the face of development and tourism and - so part of my responsibility is to not just do that in abstract, but to actually interact with the Shire, or with the developer, or with the State government, when they’ve got an ear to listen.’
Patrick gave examples of how Yawuru people prevented Torres Strait Islanders from killing dugongs in the bay, and how he stopped a man from a transport company from shifting stones up at Garawan, the eastern border of Yawuru country. Other examples he gave were expressed as follows:
‘We’ve told people that they shouldn’t be camped near Kunin or the ceremony ground, not only those who are in those houses but other people since then who - who’ve camped there. We’ve blocked people who tried to ride through the ceremony grounds outside of Kunin on motorbikes. We - we also hunted another couple out from a significant area where the - where another part of the ceremony is conducted on the ceremony grounds.’
142 Cissy Djiagween gave evidence that in 1996 she participated in a work program clearance in respect of the upgrading of a water tower that was on one of the trails of the Yilagaramiya, the ‘Dog Dreaming’. After the authorities were told of the importance of the area, the water tower was not upgraded. Cissy also spoke about how, when the waters at Rug overflowed, she had to talk to her son, whose rai came from there, to get him to talk to the spirits to make the water slow down so they:
‘…would get my message through my spiritual family. So I mean our people have left us but they’re still spiritual way with us. That’s why spirits are so close to us more than before, and we feel sad when we see our country being damaged. That’s why I’m doing my best to try to teach my young ones to continue all this, to talk for country. Because I’m the only left now and all that had been passed on to me because my brothers and sister had gone and there’s only me to talk for country.’
Cissy said that her family ‘hold’ the stories for Minyirr now. She explained that her upbringing included learning stories for culture, learning to share and to respect elders, fishing, hunting and other activities ‘[b]ecause you have to hand all this down too, you know.’
143 Mary Tarran has been involved with the Rubibi Working Group, which represents the traditional owners, and aims to review any developments on land and to protect sensitive areas in order to ‘preserve the natural vegetation and the country itself from being damaged and…to do things in an appropriate way’. Mary gave evidence of her unsuccessful attempt to prevent a house from being built at Gantheaume Point. As a result she said that her ‘uncle got sick and he died’ because ‘that was his place, you know, he was to look after that place, and he felt that was his responsibility and that he failed.’
144 Joseph Roe gave the example of how his grandfather, Lulu, had fenced off some important Bugarrigarra springs, which held a yungurrung (rain serpent) left by the Bugarrigarra. This was because if he didn’t do so ‘there’d be nothing today…just a dry creek, dry plain’. The other reason given was the springs are a safe place for people to go, as only ‘special people who got right smell can go there’. Joseph Roe proposed to take the Court for a view of the springs but the night before the view he couldn’t sleep, and ‘didn’t feel right, and I don’t want to hurt anybody else’ so the Court was requested to view the springs from a distance.
145 Gajai’s evidence in Rubibi was to the effect that since the Rubibi Working Group had started as an organisation, he has attended many meetings to talk about culture and country, as well as taking part in work program clearances and land-use planning exercises. He gave evidence that, prior to the arrival of white people, Yawuru people had the right to light fires to back burn country, but now ‘you’ve got to go through so many things before you can pull a match out of your pocket’. Gajai also gave evidence that he, along with other Yawuru people, stopped a contractor from using shell middens at Mangalagun in road construction. In the course of the movement of the stones, the remains of Aboriginal people were found.
146 Doris Edgar gave evidence about the importance of her rai place and stated:
‘It’s important for Aboriginal people or just my country, you know, where they find your spirit and all this. You got to look after it, and all this and that. Like, “That’s your country”, they used to tell us, “That’s your place”. And they – “You come out of that animal,” or whatever. You know, they - our father see your spirit come out of there. But in Aboriginal law, you got to look after that place.’
147 Doris Edgar also gave evidence that her father used to ‘make fire’ to ‘clean up country’, but she can’t do this anymore because it is unlawful. She also gave evidence about looking after nyiyarbi sites, and about cleaning and ‘talking to country’. She said that she doesn’t see those things happening now ‘because nobody don’t hardly go out bush hunting’.
148 Much of Neil McKenzie’s knowledge of country was passed on to him by his Gaga, Susie Gilbert’s husband. He stated that:
‘I used to drive all around Yawuru country with my Gaga before he got sick and disappeared. He told me about our country, all the names and stories for places and about the bush tucker and bush medicine that we can take. He told me Yawuru country belongs to Yawuru people from the Bugarrigarra and that we have rights in our country to travel about, to camp, to hunt and fish, to get bush tucker and bush medicine and wood for boomerangs and spears. He taught me how important it is to do these things to stay in touch with our country and to pass knowledge on to our kids. That’s what I do.’
149 Neil McKenzie was asked who looks after certain jilas, and responded that the Yawuru people can’t look after them now as they are on pastoral leases. He said that ‘We ask permission. We try but we’re limited to what we can do. We can’t make fire…We try to clean the country, yes, keep it clean. Too many scrub and nobody can walk through.’
150 Michael Corpus gave evidence about being involved in several work program clearances for Rubibi Working Group. He explained that a work program clearance is:
‘…a process we use to assess the heritage impacts of what a person or company wants to do on the ground in the Rubibi claim area. Under this process, we are given detailed information about a proposed development including the proposed location. We then either clear the work program by saying it can go ahead or tell people that their development can’t happen in that area because of its impact on our heritage. I have been involved in many Work Program Clearances including those for the following projects: the Broome Crocodile Farm, the Skuthorpe Horticultural Subdivision, the Neighbourhood A subdivision, the Broome TAFE, the Broome Tropical Aquaculture Park, the de-commissioning of the water tanks on Kennedy Hill, and the relocation of the airport.’
Michael claimed he was acting on behalf of the Yawuru people, because he knows that it is part of his ‘role and responsibility to look after this country’. He also gave evidence that he goes out to Mangalagun every month to ensure vehicles remain within the designated areas and to keep in touch with the country, as he has a special affiliation with that area.
151 Kimal Barrett (‘Barrett’) who worked as the Rubibi Working Group’s project facilitator for three years, and Ben Wurm, who has worked as a project development officer since 1994, both gave evidence of the participation of the Yawuru community in looking after country. In that context, they both gave evidence of the Rubibi community’s involvement in work program clearances and other land use evaluations in respect of a number of developments, in the Coastal Park Management Committee (which discusses issues affecting the coastal fringe of the Broome peninsula) and in the creation of a number of agreements with private developers.
152 The Walman Yawuru witnesses also gave general evidence of the importance to them of ‘looking after country’. For example, Elsta Foy and Peter ‘Nugget’ Matsumoto, who had both been Councillors on the Broome Shire Council, gave evidence about ‘protecting country’. One example was seeking the assistance of the Department of Indigenous Affairs to require a developer to cease its work in places they claimed are Walman Yawuru heritage sites. They also gave evidence that they brought to the attention of the Shire Council the desecration of Walman Yawuru burial sites by motor vehicles. Elsta Foy also said that she stopped a bulldozer from bulldozing sand dunes near Kennedy Hill.
(j) ‘Increase sites’
154 The evidence is that there are nyiyarbi sites (‘increase sites’) in Yawuru country. An ‘increase site’ is a site at which the performance of a ceremony (often now limited to rubbing a rock) causes an increase in particular animals in that area. ‘Increase ceremonies’ were accepted by Sansom as evidence of a totemic connection with the site in question.
155 Patrick Dodson gave evidence in Rubibi about an ‘increase site’ near Kunin that related to turtle, but said that he hadn’t used it himself. He confirmed that ceremonies take place in order to ensure that food is plentiful. Cissy Djiagween and her daughter Mary Tarran gave evidence of a nyiyarbi site at Town Beach being a rock covered by water:
‘CISSY DJIAGWEEN: All you have to do is go down and rub those stone and ask for good luck, doesn't matter what.
MR IRVING: Right. And that’s for fish?
CISSY DJIAGWEEN: Fish or crab or whatever.’
However, in cross-examination Cissy was asked if she had ever done this, and she responded that she had not.
156 Neil McKenzie also gave evidence that his Gaga, Susie Gilbert’s husband, had told him that there was a rock under the Broome jetty, called Manala, that old people used to tap to summon the fish they wanted to catch before they went fishing. His Gaga told him that in the ‘old times’ people would sing for turtle and dugong from the rock, which is now buried under the rubble of the old jetty.
157 Gajai gave evidence about an ‘increase site’ for gulban (brown mullet) at Gulbanangajarl. He gave evidence that ‘[o]ld people used to talk to country there so that there would be plenty of mullet to catch. We call these places on our country nyiyarbi.’ He gave evidence that he doesn’t use this site today, but if he obtained the manager’s permission to fish there, he would use the site. Elsie Edgar’s evidence was that there is a nyiyarbi place for mullet at Lambinnguru, which is where Susie Gilbert’s husband was born. She also gave evidence that there used to be nyiyarbi stones for turtle and shark at Bindgaja (south along the coast from Kunin) but that they were broken down by the tides.
158 The Walman Yawuru witnesses gave similar evidence about Gurlibil (Turtle) Rock, an ‘increase site’ for turtles.
(k) Permission to access country
160 The evidence is to the effect that the Yawuru people believe that a person who goes to a place where they should not go may get hurt or sick, and that there is nothing that anyone can do to stop that from happening. Thus, it was said to be important for non-Yawuru people to seek permission to go to Yawuru country, so they can be informed of the places where they were not to go.
161 When asked during his evidence in Rubibi whether a Yawuru person could set up a permanent camp at Mari Mari, Joseph ‘Nipper’ Roe, whose rai place it is, responded:
‘Well, they have to seek permission from, you know, the people from that area, because, coming over there, they probably wouldn't know, you know, where is place of significance, sacred stuff around there…’
However, he said that Yawuru people would have rights to fish, hunt and camp there.
162 Patrick Dodson explained what he would do when visiting another person’s country:
‘We’ll take a stone from that country, rub it under our armpit so that the sweat from your body, you throw that into the water and you talk to the people of that country, if there’s no other people for that country there, if you go into a stranger country.
And you tell them who you are. You tell them “I’m a Yawuru person. I’m a Yawuru-gun coming here. I come from wherever, from Broome, or Marar”, or wherever you come from, what part. And you let the spirits of that country know that - that you are there and you ask - you tell them that you come as a friend, that you're not coming to disturb that country or do anything wrong.
You’re either coming to camp there or to - to - to let - let your - your sweat, your (yirra), your - be known, and the law can smell that. The law can pick that up.’
Asked if he could give any example of a Karajarri person who asked for permission to enter Broome, Patrick Dodson replied:
‘It’s a bit impractical today. People come and go on the roads. I don’t stand at the entrance of Broome and do a check, you know, of everyone coming in and out of this town. But if the bosses, the Karajarri bosses are coming here, they will let me know either by the Kimberley Land Council or through Rubibi or through Gajai, and if any of these other people are coming through for whatever purpose, they’ll let me know that they’re coming here. But usually they’ll notify us if they want to meet and talk to us.’
163 Patrick claimed that Yawuru people no longer ‘have the power, the authority, the ability under the white man’s system’ to exclude people from Yawuru country. Thus, he said ‘we try to encourage those people to respect the customs and practice of the Yawuru people and the Yawuru country’. Patrick claimed that it is:
‘…our job as the people responsible for the future of the Yawuru people and the carrying out of our laws, to tell people that we’re not happy with their conduct, or their behaviour, and that they ought to check themselves, or sort themselves out. Or we go to the authorities, and say, you ought to move those people to another town.’
164 Doris Edgar was asked about what happens if non-Yawuru people are coming in, and responded ‘they got to ask, for safety, because they might go into other places or business ground or things like that’. Elsie Edgar also said that non-Yawuru people had to ask permission to go hunting, and needed to be told that ‘they’re not supposed to go round where there’s man law’. However, if they wanted to go to the township of Broome she said that ‘they can come anytime to town, it’s just a town’.
165 Kevin Puertollano was asked if he would ask the people connected to Yardugara (like Gajai or Elsie Edgar) if he could go fishing there, and he responded that he doesn’t ask their permission, he would tell them out of respect, but would not turn back if they told him not to go there unless it was because they told him not to go to a significant place. Thomas Edgar was asked if he needed to ask permission to go hunting, fishing or camping in parts of Yawuru country. He said he did and that he would ask the person who lives there if he could go fishing. Asked later if people need permission to go to Yardugara, where Thomas Edgar is from, his response was to the effect that if they’re Yawuru people they can come any time. He said permission was only required if something is happening, such as a ceremony. He also said that permission comes from respect, and respect comes from being an Aboriginal person.
166 Michael Corpus’ evidence was that if he was going down Yardugara way, where Gajai has a special connection, is a leader in the community and ‘holds the law’ for the Yawuru people, he would ‘probably see Gajai to let him know as a matter of respect and courtesy…so he would know my whereabouts and so that it would feel right’. However, when asked under cross-examination about this, Michael explained why he would ask Gajai:
‘MICKLO CORPUS: He’s accessible, he’s easy, he’s just around the corner from me. Yes, I could go and see other people too as well.
MR KING: Isn’t it because he has a special connection to that land?
MICKLO CORPUS: No.’
167 Alberta bin Omar said that she never had to ask permission to go anywhere in Yawuru country, she could do anything as long as she respected the land and looked after it.
168 Simon Williams described his rights in Yawuru country as being able to ‘fish and hunt and basically roam as I please in the areas that are considered to be grounds of all the places where we always roamed’. He said that those rights came from his grandmother and her descendants and ancestors. He said he was taught that other than ‘law grounds’ he can go anywhere in Yawuru country, and he said he has never asked permission to go anywhere in Yawuru country. He recollected that:
‘Once when I was about 10 years old, we came across a fence over Crab Creek side. I think someone had put it up to keep animals away. When my parents saw that fence, they were very offended and said that someone had blocked their way in their country. They said that this was not right.’
‘When I say someone came from a place or belongs to a place, that means there is an area of land we all grew up knowing the person came from. For instance, Francis Djiagween’s father belonged to Marar, a place on Thangoo Station. He moved to Beagle Bay and Francis was born in Broome. So, Francis comes from Broome. But he can get Marar from his father. I can get Rawan-Nganjal from my mother. When you get a place like this you can go there any time you like, build a paddock there, hunt and fish there, collect mayi or bush tucker. But this doesn’t mean you cant go anywhere else. You don’t have to ask to go anywhere on Yawuru country, you can just go. You might mention it to the person who belongs to that place, but you don’t ask permission.’
170 Steven Possum, a senior Karajarri ‘law man’, gave evidence that he would not go to Yawuru country without asking. Peter Francis, a Nygina man, said that Nygina people will only go into Yawuru country if they are invited to do so by Yawuru people. He said that ‘a young Nygina boy can’t go into Yawuru country without his family. He would be a dead duck. He wouldn't know where the sacred places are. Under olden law ways he would be killed.’ Paul Sampi, a Bardi man, gave evidence that there is no problem with northern law being practiced in Yawuru country because Yawuru people respect it. He said he must ask permission to visit northern ‘law sites’ in Yawuru country but he has always been given permission. He stated that ‘I have never known a person to ask permission and be refused. To refuse permission would be greatly offensive.’ In summary, evidence was given by numerous witnesses called by the Yawuru claimants of the traditional requirement for strangers having to ask permission to enter Yawuru country. The witnesses included Patrick Dodson, Frank Sebastian, Joseph ‘Nipper’ Roe, Alberta Bin Omar, Mary Tarran, Joseph Roe, Thomas Edgar, Elsie Edgar, Paul Sampi, and Peter Francis.
171 In addition to the above evidence there was also evidence from several of the Yawuru witnesses to the effect that they had been told by Yawuru elders, and believed, that a Yawuru person was entitled to fish, hunt and gather anywhere on Yawuru country without requesting permission, provided that they respected sacred sites and didn’t go to the ‘law grounds’. The 1993 affidavit of Susie Gilbert’s husband was also to that effect.
(l) Genealogies
174 The Yawuru claimants relied on the genealogy expert report and affidavits in support tendered in Rubibi, along with the further expert reports and evidence of Katie Glaskin and Barrett, on the methodology used to collect the information contained in the genealogies and on the anthropological conclusions that might properly be drawn from them.
175 It is now well established that community membership is to be established by reference to traditional law and custom, rather than solely by descent (see Rubibi at 443 [148] and the first De Rose decision at 388 [200]).
176 The Yawuru claimants contend that community membership based on ambilineal or cognatic descent accords with traditional law and custom. Part of their final submission was as follows:
‘In terms of affiliation, whether patrilineal, matrilineal or cognatic (ambilineal), the evidence supports the conclusion that Yawuru people have always been free to choose to follow either their mother or their father. Based on her knowledge of the genealogies, Kimal Barrett stated:
“People have always had choice to follow their mother or their father.
…
And even going right back, if you go back to the earliest people, you can see people choosing one way or another, just in this country”
Examples of such choice can be seen in the three oldest Yawuru law bosses Felix, Thelma and Elsie Edgar, who followed their Yawuru mother rather than their Bunuba father. In like fashion, Susie Gilbert’s husband, who was born 1908, followed his Yawuru mother and her Yawuru parents rather than his Mangala/Karajarri father. Doris Edgar stated that she can follow both her Karajarri mother and her Yawuru father and she chooses to do both, her husband being a Karajarri man. Joseph Roe’s evidence was that the parents of two children might, in circumstances where there is a Yawuru father and a non-Yawuru mother, decide that one child will follow the father and one will follow the mother. Again none of this evidence was seriously challenged.
The applicants rely upon the finding made in par [142] of Rubibi that adoption of the ambilineal model did not create a new community. That finding was correctly founded in fact and law.’
‘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;
· Annie Mawunga, Frank Sebastian’s grandmother and Felix Edgar’s mother, was born around 1880 and is buried in a cemetery in Broome; and
· Nyilandin (whose rai came from Minyirr) and Lija, Mary Tarran’s great grandparents, were born in 1850 and 1880 respectively.
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 as the turn of the century.
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 Australians 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.”
See also Lee J in Ward v Western Australia at 514.
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.
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.
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.’
178 In Rubibi at 445 [159], I found 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.’
179 Although some amendments were made to the genealogies in the present proceedings, those amendments were relatively minor. Many witnesses again corroborated the genealogies during their oral evidence (for example, Doris Edgar, Kevin Puertollano, Alberta Bin Omar, Madge Yu and Simon Williams). It was evident during the course of the hearing that some aspects of the genealogies were disputed by the Walman Yawuru respondents. Barrett explained that competing views in the community as to the correctness of a particular genealogy are a natural result of people having ‘different recollections’. Barrett, having analysed the genealogical information to determine whether the ancestors of the Yawuru claimant group would have been living in Broome during the 50 years prior to about 1890, stated:
‘On the basis of the Rubibi genealogies, I have examined which Aboriginal people would have been living in Broome during the 50 years prior to 1890. I have focused on those persons living in that period whose descendants are among the native title claimant group. Estimating from known birth dates of members of the later generations, I have made an assumption that a mother would be approximately 20 years old when her first child was born.’
180 Putting to one side the Goolarabooloo and Djugan issues as well as some of the objections to particular entries in the genealogies, I accept the submission of the Yawuru claimants that the evidence at the present proceedings does not warrant any significant departure from the finding I made in Rubibi in respect of the genealogies.
4. The Walman Yawuru witnesses
182 Eight witnesses were called to give evidence of the laws and customs acknowledged and observed by members of the Walman Yawuru clan. Each of the witnesses was descended from Ngobing Babere and Chimbere Sitocay. The laws and customs described by the witnesses in their evidence were said to have been derived from Emma Ngobing, who was the daughter of Ngobing Babere and Chimbere Sitocay. Emma Ngobing was known and referred to as ‘Mimi’, which is the Yawuru word for grandmother. In 1898, Emma married Severo Corpus, who was not an Aboriginal person. Subsequently, they were permitted to live together in Broome. Mimi died in 1953.
183 It is clear from the evidence that, due to racist policies pursued in and around the Broome area prior and subsequent to Mimi’s death, the practice of any traditional Aboriginal laws and customs by her or her family members in Broome was frowned upon as unacceptable behaviour. It was therefore difficult for Mimi to continue to practice those laws and customs, or to impart the detailed and meaningful knowledge she had of the laws and customs to her children and grandchildren. Nonetheless, Mimi was a senior Yawuru ‘law woman’ and, according to the evidence of the Walman Yawuru witnesses, was the primary source of the knowledge and information they claim to possess about traditional laws and customs. However, much of the evidence given by the Walman Yawuru witnesses about those laws and customs was lacking in detail, was by way of assertion and was, of necessity, based upon recollections of what a number of the witnesses were told by Mimi more than fifty years ago. While a similar criticism might be made of some of the evidence given by the Yawuru claimants’ witnesses, a significant distinction that can be drawn is that the Yawuru claimants’ witnesses and, in particular, the senior Yawuru ‘law men’ explained the detail of the important spiritual underpinning of the traditional laws and customs as laid down in the southern tradition. The Yawuru claimants’ witnesses also included senior ‘law men’ who were also able to provide much greater detail of the traditional laws and customs that they were acknowledging and observing.
184 Margaret Mary Robinson was Mimi’s granddaughter. Margaret states that her mother, Regina (Mimi’s daughter), and Mimi both spoke Yawuru fluently. She said that Walman Yawuru people spoke a form of the Yawuru language. She said that Mimi was an important ‘law woman’ and had taken her cousins to Yawuru ‘law grounds’ for Yawuru ‘law business’. Margaret was often taken out fishing and cockling by Mimi and was also taught by her to collect bush fruit. She described Walman Yawuru country as being:
‘…around the Cockle Well, Mangalagun – Crab Creek, and Kunin area. It goes down to Mangrove Point where the old jetty used to be.’
185 Margaret claimed that when Aboriginal people visited Mimi in Broome they paid their respects and asked her permission to camp. She said that both Mimi and her mother told her that ‘this was because they were coming onto Walman country and it was our country’. Margaret stated:
‘…Mimi was the daughter of my great grandparents Ngobing Babere and Chimbere Sitocay, and where we lived and camped and fished and gathered food and medicines was their country and they were Walman people.’
186 Margaret also gave evidence about being informed by Mimi and her mother about ‘skin groups’ and rai spirits. In response to the Yawuru claimants’ claim that no Yawuru person can be excluded from anywhere on Yawuru country, Margaret stated:
‘I am an elder of the Walman Yawuru clan. It was passed down to me from my mother and [grandmother] that, under the traditional laws and customs of the Walman Yawuru people there are different clans. You need to ask permission to go into their clan country, or camp there. They can stop you from going on their country. You have to respect the areas important to them and their country. The other clans ask for Walman Yawuru’s permission. A belief has been passed down to me from my elders, under Walman Yawuru traditional laws and custom, is that if someone speaks for country that doesn’t belong to them, it will bring death for someone within their immediate family, often an innocent.’
187 Similar evidence was given by other Walman Yawuru witnesses. However, much of the evidence was assertion. A similar observation may be made in respect of Margaret’s evidence as to her ‘beliefs’. For example, she stated:
‘It is my belief that the different clans have responsibility for looking after their own country. Their own country is the country of their ancestors. They know their own camping places, their places of significance, and their burial sites, where the Law grounds are that must be respected. They are the ones that will be punished by the spirit of the country if they do not look after it.’
188 Margaret also gave instances of her family visiting the areas of other clans and asking permission to go there. She stated:
‘It is part of Yawuru traditional laws and customs that you get permission from the clan who belongs to that country before you visit or camp on that country.’
189 When Margaret was cross-examined, it became clear that she had little knowledge of traditional Yawuru or Walman Yawuru laws and customs. Although she suggested from time to time that there were specific Walman Yawuru laws and customs, she was unable to provide any basis for that suggestion. For example, when Margaret was asked about ‘Walman law’ or ‘laws in the Yawuru country’ she stated that ‘the law is for the law men and for the law women’ and that ‘it’s nothing to do with me’. When asked about the knowledge that had been handed down to her by her Mimi or her mother, Margaret gave the following answers:
‘MR KING: What is the rule for skins in Walman-Yawuru or Yawuru?
MARGARET ROBINSON: Well, I don’t know – well, who you could marry.
MR KING: Yes. What is the rule? How does a person get a skin?
MARGARET ROBINSON: Well, it’s through your grandmother or grand – they tell you what skin you are.
MR KING: Who tells you?
MARGARET ROBINSON: My mimi and my mother.
MR KING: Okay, I’m sorry, I didn’t mean you specifically, Mrs Robinson, but generally how does a Walman person get a skin?
…
MARGARET ROBINSON: We get it through our mum – mother and my mimi. They tells us what skin we are.
…
MR KING: But what is the rule for the skin that you get? Is there a rule?
MARGARET ROBINSON: I don’t know.
…
‘MR BELL: Did your mimi or your mother give you any songs, any traditional songs to hold?
MARGARET ROBINSON: No songs but she gave me the story about the crocodile. That's all.
MR BELL: Any other stories than that one?
MARGARET ROBINSON: No.
MR BELL: No. Did she tell you where that story came from?
MARGARET ROBINSON: No.
MR BELL: No. Did your mimi or your mother give you any ceremonies to hold?
MARGARET ROBINSON: No.
MR BELL: No. Any dances?
MARGARET ROBINSON: No.
MR BELL: Any rituals at all, women's law rituals of any kind?
MARGARET ROBINSON: No. Law is for the law person people.
…
MR BELL: … I’m wondering, therefore, whether that woman gave your mother or you, in turn, any ceremonies or songs or women’s law business to hold?
MARGARET ROBINSON: No.
…
MR BELL: No. Did mimi or your mother tell you where skins came from?
MARGARET ROBINSON: No.
MR BELL: Did they tell you whether members of other clans or other Aboriginal groups in this area, in the Broome area also had skins?
MARGARET ROBINSON: They didn't tell me anything.
MR BELL: They didn't tell you anything?
MARGARET ROBINSON: Oh, they did tell me they had skins but - - -
MR BELL: Yes.
MARGARET ROBINSON: - - - that's all.
MR BELL: But they didn't tell you whether other clans in the area, for example, had skins?
MARGARET ROBINSON: No, they didn't.
…
MR BELL: … what I would like you to tell me is whether mimi or your mother told you that there were ceremony places on your country and where they were?
MARGARET ROBINSON: No, she didn't tell me anything.
MR BELL: Okay. Did either of them tell you that there were ceremony places under Aboriginal law in Djulbayi or in Yardugara country?
MARGARET ROBINSON: No.
MR BELL: And Minyirr country?
MARGARET ROBINSON: No.
MR BELL: Okay. Did your mother or mimi tell you where jilas come from? Do you know the word “jila”?
MARGARET ROBINSON: Oh, yes.
MR BELL: Yes. Jila is an Aboriginal soak or waterhole?
MARGARET ROBINSON: Yes, there is a waterhole. There’s a few of them around.
MR BELL: There’s a few of them around? Okay.
MARGARET ROBINSON: Yes.
MR BELL: Did they tell you where jilas come from?
MARGARET ROBINSON: No.
MR BELL: No? What about medicine trees, did they tell you where medicine trees come from?
MARGARET ROBINSON: No. I know they're around - - -
…
MR BELL: Okay. So, your evidence is that members of your family know what the medicine trees are and you can get them if you want them?
MARGARET ROBINSON: Yes.
MR BELL: Okay. What I’m asking you is whether mimi or your mother told you where medicine trees come from?
MARGARET ROBINSON: She wouldn’t have to tell us, it’s all over the place.
MR BELL: It’s all over the place?
MARGARET ROBINSON: It’s all over – all over the place.
MR BELL: Okay. Did she ever tell you that they were put there by somebody or something?
MARGARET ROBINSON: No.
MR BELL: No? We were showed Turtle Rock yesterday
…Can you tell me please whether mimi or your mother told you where that rock came from?
MARGARET ROBINSON: No, she didn't. She said that Turtle Rock was there and it was belong to our mob.
…
MR BELL: … You know that law ground do you over at Kunin way?
MARGARET ROBINSON: That’s a men’s place. That’s a men’s place.
MR BELL: … Were you told where the law ground came from?
MARGARET ROBINSON: No.
MR BELL: How that law ground came to be there, were you told that?
MARGARET ROBINSON: No, I knew it was there. My grandmother, mimi always told me there was a law ground there but it's no good for women.
MR BELL: No good for women?
MARGARET ROBINSON: Yes, or anybody to go near it, so we never went near it.
…
(How did Mimi and your mother describe their mob?)
MARGARET ROBINSON: Oh, they used Walmanjanu, yes.
HIS HONOUR: Yes. Did they ever say anything about what that word meant or where it came from?
MARGARET ROBINSON: A place.
HIS HONOUR: Just a place?
MARGARET ROBINSON: Yes, just a place. Land, a place or - - -
HIS HONOUR: And I think you've said that you regard your family group or clan as the traditional owners of Walman-Yawuru country, is that right?
MARGARET ROBINSON: Yes.
HIS HONOUR: Who in the family today is the person who best understands the traditions of the Walman-Yawuru people? Firstly, on the male side, is there some person who has an understanding and knowledge of the Walman-Yawuru traditions?
MARGARET ROBINSON: I think Richard would be the only one.
…
HIS HONOUR: And what about on the female side, is there any person on the female side that has an understanding or knowledge of the Walman-Yawuru traditions?
MARGARET ROBINSON: No, I don't think any - I don't think any of the female side has.’
190 When Margaret was cross-examined about why the clan is called Walman Yawuru all she could say was that it was because her mother and Mimi told her about ‘Walmanjano’, which the Walman Yawuru claimants had decided to change to ‘Walman Yawuru’. When cross-examined as to why the members of the Walman Yawuru clan have rights in respect of the Walman Yawuru claim area, Margaret responded:
‘There’s something there. My grandfather was killed there defending that country. My grandmother was born there. And we got spirits in that country. We’ve got Dreamtimes there.’
191 Although it can be accepted that Margaret cannot give any evidence about men’s ‘law business’, that does not explain her inability to provide any detail of the traditional laws and customs of the Walman Yawuru clan.
192 Margaret explained the claim to Minyirr country. She claimed that the Walman Yawuru people were custodians of that country as the Minyirr people had died out and that the Walman Yawuru people must look after that country for them so that it won’t die.
193 The evidence of Edward Leonard Roe was also beset by a similar lack of detail. Edward was born in Broome in 1930 and was the grandson of Mimi. Edward gave evidence about the obligation of others to ask for permission to visit, fish or hunt in Walman Yawuru country. Edward’s evidence about Minyirr was that as he was growing up, Mimi had told him that the Minyirr people are all dead and that ‘we had to look after this country to keep its spirits alive, and to stop the country from dying. It is not Walman Yawuru traditional country but we have rights and responsibilities for it.’ Mimi also said to him that when the family was camping at places like Mangalagun:
‘…we had to keep the spirits of the country alive and to do this we had to use the country and respect the spirits of the places where we camped and hunted and fished.’
194 As with Margaret Robinson, Edward was unable to give any detail of the Walman Yawuru clan’s traditional laws and customs. When asked about the rai spirit he was only able to say that that spirit is in ‘Walman country’, which he states was the place ‘where we were born’. When asked about marriage and ‘skin’ rules Edward acknowledged that they all come from Bugarri. Likewise, he said that the rights to go hunting and survive on land all come from the Bugarri. Edward agreed that the kinship system is shared with all Yawuru people. Edward gave the following evidence concerning the Bugarri:
‘HIS HONOUR: Edward, is the Bugarri the same law as Susie Gilbert's husband was a senior lawman for? Is that the same law you're talking about?
EDWARD ROE: Bugarri gave the lawmen the law and the lawmen distributes the law amongst the people.
HIS HONOUR: Yes.
EDWARD ROE: So we don't break any laws.
HIS HONOUR: Was it the same law for Susie Gilbert's husband?
EDWARD ROE: Yes, the same law in their country, yes.
HIS HONOUR: And is it the same law that the Yawuru people have?
EDWARD ROE: Yes, it's the same law. Everyone got their law in their own country. They get it from Bugarri and then hand it down to through the elders and they hand it to their children, and then they all go - - -
HIS HONOUR: And is there any different law for Walman-Yawuru or is that the same law?
EDWARD ROE: Same law.
…
HIS HONOUR: Were you saying that your Walman Yawuru is a clan in the Yawuru people and therefore you're part of the Yawuru people, or are you saying that---
EDWARD ROE: Yes.
HIS HONOUR: ---you're Walman Yawuru and therefore you're not part of the Yawuru people; you're different?
EDWARD ROE: We are---
HIS HONOUR: What is it that you’re really saying?
EDWARD ROE: We are - we belong to the Yawuru people, but they – we have borders with them. We've got - our border is Walman Yawuru and they are Djulbayi and a few others. We've got all borders.
…
HIS HONOUR: … But are Yawuru laws practised in Walman Yawuru country?
EDWARD ROE: Yes.’
195 When asked about walking rights through to Willie Creek, which was to the north of Walman Yawuru country and is part of the Yawuru claim area, Edward gave the following answers:
‘EDWARD ROE: No, but there is a walking right there’s a walking right. We have the walking rights along the coast to Villaret, at Cape Villaret.
MR IRVING: So, walking rights along the coast to Cape Villaret?
EDWARD ROE: Yes.
MR IRVING: And to Willie Creek?
EDWARD ROE: No.
MR IRVING: No?
EDWARD ROE: We had the walking rights but Willie Creek is where my mother was born and all my aunties, so it’s a special place and we go there.
…
EDWARD ROE: If it’s along the coast, no, we don’t have to have permission. We’ve got the walking rights there.
MR IRVING: Okay.
HIS HONOUR: Is there some reason that … the coast is different from inland for walking rights?
EDWARD ROE: Yes, your Honour. When you walk on the seaside you know the people’s country is that side of it but you can’t go over it like that. And you’ve got fish and then you camp all along but if you have inland, you cross other people’s country.
HIS HONOUR: But why wouldn’t you cross other peoples country when you walk along the sea along the beach?
EDWARD ROE: Along the beach, well, we were told that it’s our we were told by people, elders that that’s our walking right along the beach right up from Crab Creek to Cape Villaret.’
196 Edward’s evidence about his clan’s walking rights on the land of other Yawuru clans is difficult to reconcile with the Walman Yawuru claim that permission must be sought by a non-clan member from a Yawuru clan member to be on that clan’s land.
197 There is a further difficulty with Edward’s assertion that he, Mimi, Chimbere Sitocay and Ngobing Babere are ‘Walman Yawuru people’ and his country is ‘Walman Yawuru country’. Edward’s written statement handed up by a Walman Yawuru representative at the Rubibi hearing, stated:
‘I am Yawuru. Yawuru is the name of my mother’s and grandmother’s tribe. My family group is Walman Yawuru, or Walmanjano. Walman means your country goes from Willies Creek, Cockle Well to Marngulagun.’
198 In the statement, Edward referred to Mimi as ‘a Yawuru woman of Broome’ and to Chimbere Sitocay and Ngobing Babere as ‘both Yawuru people’. He also said in the statement that he was told he was Yawuru when he was a child and that his mother had said ‘this is Yawuru country’. He stated that as ‘a Yawuru person, I have to help look after my country and share it with others.’ In relation to the story of Mimi’s father defending his country, he stated:
‘My grandmother’s father got killed defending his tribe from other tribes at Cockle Well before white people came to live in this area. Mimi Emma told me they were desert people who came to steal women from Yawuru.’
199 In the statement, Edward also said that he taught his children and grandchildren Yawuru traditions and customs in relation to permission to enter country. He also stated:
‘When I visit other people’s country I speak to them first to make sure it’s alright to go there.
As a Yawuru person I can go fishing and crabbing on this country same as when I was a kid.’
200 In his statement, Edward referred to the 1998 reburial of human skeletal remains at Crab Creek as a reburial on ‘Walman Yawuru land’.
201 I have set out passages from Edward’s statement at some length as they reveal that he identified as a Yawuru person living on Yawuru country. While he also expressed a strong affiliation with ‘Walman Yawuru land’, it is significant that, prior to the present dispute arising between the Yawuru and the Walman Yawuru claimants, Edward (and a number of other Walman Yawuru witnesses) regarded Mimi and her parents as Yawuru people living on Yawuru country. Also, in relation to Ngobing’s defence of his country, which is regarded as one of the defining events of the Walman Yawuru clan, Edward referred to the death as occurring when Ngobing was defending his tribe from other tribes who were desert people ‘who came to steal women from Yawuru’. The reference to ‘his tribe’ appears to be a reference to the Yawuru people.
202 There is another aspect of Edward’s evidence that is difficult to reconcile with the evidence of the witnesses called by the Yawuru claimants. He claimed that in the 1950s Tommy Edgar, a senior Yawuru ‘law man’, brought certain artefacts from ‘Thangoo or Yardugara way’ and requested, and was granted, Mimi’s permission to use the ‘law ground’ at Kunin to practice ‘the law’. The suggestion of such a request being made by a senior ‘law man’ to a female, albeit that she is a senior ‘law woman’, is inconsistent with the extensive evidence of the strict observance of gender restrictions in relation to the practice of ‘law’ at Kunin. The evidence establishes that such matters are ‘men’s business’ and there is no scope for any female role or permission in relation to such ‘business’. I am not prepared to accept that any such request was made. Putting to one side the difficulty of recalling an event that occurred so long ago, it is likely that any such visit was no more than a courtesy call, which the evidence establishes is a common occurrence in traditional society.
203 Jack Roe was born in 1928 under a gubinj tree in Mangalagun, which he said is a special place for him because he was ‘born in [his] family’s traditional country’ being ‘Walman Yawuru country’. Jack said he ‘gets his country’ from his mother and Mimi. Jack, however, described ‘rights to country’ as follows:
‘My family has rights to country from Willies Creek through the Broome town area to somewhere near Thangoo, although Walman-Yawuru country is more from Mangrove Point to Mangalagun, Crab Creek. That’s what the old people told me.’
204 The former area coincides with the Yawuru claim area and the latter area with the Walman Yawuru claim area.
205 Although Jack said that people no longer ask for permission to come to Walman Yawuru country, he remembers that just after the war, Robin Hunter from One Arm Point got permission from Mimi and her people to live in Morgan’s Camp, which was at the northern end of Chinatown.
206 As with other Walman Yawuru witnesses, Jack was unable to give any details of ‘the law’ and seemed to be unable to identify any difference between ‘the law’ followed by the Walman Yawuru people and ‘the law’ followed by Yawuru people, although he stated that ‘the laws’ followed by each group of people are different.
207 Jack had also made a written statement that was distributed at the Rubibi hearing by a Walman Yawuru representative. In that statement, Jack said that he is Yawuru through his mother and grandmother’s side and that both of them had told him he was Yawuru. He also said that ‘[w]hen I was growing up I never heard of any other tribe, only Yawuru.’
208 Similarly, in his statement, Jack said that he learnt how to fish and hunt from his friends who, like him, were Yawuru people. He stated that he told his children they are Yawuru and taught them how to fish and hunt in the same way that he had been taught. He said that ‘Yawuru country goes from Willies Creek, Broome town area, to somewhere near Thangoo. That’s what the old people told me.’ The country he described coincides with the Yawuru claim area. In referring to the Robin Hunter incident, Jack stated:
‘These days people from other tribes don’t ask permission to come into Yawuru country. I remember just after the war, Robin Hunter from One Arm Point got permission from my grandmother and her people to live in Morgan’s Camp, at the northern end of Chinatown.’
209 Prior to the Walman Yawuru dispute with the Yawuru claimants, Jack referred to Richard Hunter’s request as a request to enter ‘Yawuru country’. After the dispute the request was described as a request to enter ‘Walman Yawuru country’. Jack’s statement also states that his family group calls itself ‘Walman Yawuru or Walmanjano’ and that his country belongs to Walman because that’s ‘our clan country’. However, it is clear from his statement that Jack recognises himself as belonging to the Yawuru tribe and refers to the Yawuru claim area as Yawuru country because that’s what ‘the old people told me’.
210 Jack was questioned about his Rubibi statement in cross-examination. When asked whether the distinction had always been drawn between Yawuru country and Walman Yawuru country he said:
‘JACK ROE: No. Here. Broome itself.
MR IRVING: Yes.
JACK ROE: That’s proper Yawuru country.
MR IRVING: Yes. Yawuru country.
JACK ROE: Yes.
MR IRVING: Yes. As distinct from Walman Yawuru country.
JACK ROE: Well, Walman come afterwards.
MR IRVING: Yes.
JACK ROE: Mm.
MR IRVING: That’s right. After the split.
JACK ROE: I don’t know. I don’t know.
…
JACK ROE: Yes. Well, the – the main – the main – main Yawuru is here.
MR IRVING: Yes.
JACK ROE: Yes.
MR IRVING: And then after that split – well, what do you mean by “the main Yawuru”?
JACK ROE: Well, this is Yawuru country here.
MR IRVING: Yes. In Broome.
JACK ROE: Yes.
MR IRVING: Okay. But – and does that Yawuru include Walman Yawuru family, as well?
JACK ROE: Well, he only just come out. They reckon he – that Walman just come out. I don’t know.
MR IRVING: Yes.
JACK ROE: And as far as I know, we – we all Yawuru and all that.’
211 Jack was also shown an affidavit sworn by him and filed with the Native Title Tribunal at an early stage of the Rubibi claim. In that affidavit he stated:
‘Mimi told me that this country is all Yawuru, the whole lot, right through. Mimi learned us the Yawuru language when we were small. My grandmother learned me that I belong to the Yawuru tribe. She said that Yawuru country is very big, right round Roebuck Bay, Broome, halfway down Thangoo Station way. Willie Creek too. That’s where Mimi and Lulu used to stay. Mimi would always talk about the pelican. She would say “that mob, mine.”’
212 Given that the Walman Yawuru witnesses sourced most of their knowledge about traditional laws and customs in what was conveyed to them by Mimi, it is significant that the evidence, which Jack gave prior to the dispute arising between the Yawuru claimants and the Walman Yawuru claimants, is not consistent with the Walman Yawuru claim that is now being pursued which is to the effect that country is clan, rather than people, based.
213 The evidence of Alfred Corpus followed a similar pattern to that of Jack Roe. Alfred was born in Mimi’s house in Broome in 1928. He claimed to be Walman Yawuru. He was reared by Mimi until he was 12 years old and during that time he ‘learnt so much about her country’. Alfred tells the story of Ngobing Babere’s death in the 1880’s as follows:
‘It was about her father, Ngobing Babere, who was hunting with his son, Rally, near Cockle Well. Mimi's father saw Geegully people from inland coming towards them. He knew straight away they were here from another country, and they were coming here to do harm.
He sent his son away. He said, “You go back and tell the people to come and help”. He fought with the strangers, and he was killed.
When Rally was running back to get help for his father, he ran into a Geegully youth the same age as him. He was with the Geegully mob that came to do wrong, whether it was to steal wives or what.
The Geegully boy let Gaga Rally through. When the mob from the other Yawuru clans came from Broome, they had a big fight with the Geegully people and many were killed. Rally said to all the Yawuru people, “Don't hurt that boy. He's the one who let me go”. They killed everyone except that boy.
That Geegully boy stayed with our family for years. My brother Pinky and I knew him. I think he went to Mundja peanut plantation in the finish. He must have died there, because we never heard any more of him.
He was from inland people. In the old days, I believe they used to come and get their women from the coast. Gaga Rally told me his side of the story. He told me that young boy and him ended up good friends, like brothers.
The big fight happened near Cockle Well.’
214 He also said that Mangalagun has always been important to his family and that Mimi had said ‘her family’s country was around Mangalagun’. Alfred also gave evidence that his rai is a spirit that belongs to country, which he referred to as ‘Walman country’.
215 A written statement by Alfred was also distributed by a Walman Yawuru representative at the Rubibi hearing. In that statement, Alfred stated:
‘My grandmother told me that she was Yawuru. She said that Yawuru country was from Severo Creek right round to the Willie Creek area.
I am Yawuru too.’
216 In the statement, Alfred also said that Mimi said her family’s country was around Mangalagun, which is now also known as Crab Creek. When Alfred was cross-examined on how long it has been important to him to draw a distinction between Yawuru and Walman Yawuru he stated:
‘Well, as a - as a young fella, you didn’t worry much about that. Since all this Court proceeding come along, it becomes important to know where you come from.’
217 Similar observations may be made about Alfred’s evidence to those that have been made in respect of Jack and Edward’s evidence. Mimi was relied upon as the source of Alfred’s knowledge about traditional laws and customs. It is clear from Alfred’s written statement that Mimi regarded her country as Yawuru country and that that country coincides with the Yawuru claim area. It is, of course, also correct that Mimi had a special attachment to the area around Mangalagun and also referred to that as her country.
218 Elsta Foy, another of Mimi’s granddaughters, also gave evidence about what she was told by Mimi, with whom she lived after World War Two. She said that she ‘gets’ her country, which is Walman Yawuru country, from her mother and Mimi. Elsta stated her belief is that her ancestors are Walman Yawuru. She said that the fact that she belonged to her country had been recognised by many Aboriginal persons. Elsta gave evidence of her endeavours over a period of time to protect Walman Yawuru country. She also gave extensive evidence about how she had been taught by Mimi and her daughters to collect ‘bush tucker’ and to fish and hunt. She gave evidence about being informed that, after the Minyirr people had died out, Mimi had said that the Walman Yawuru clan had the responsibility to look after their place and keep it alive. Elsta also gave evidence about being informed by Mimi and Elsta’s mother about rai, the spirit for the country in which she was born, and how that spirit goes back to the country when she dies. She was also familiar with the rules concerning ‘skin sections’. Elsta gave evidence about burials, corroborees and ‘law grounds’ ‘on Walman country’.
219 In the course of cross-examination, Elsta agreed that her connection to her country comes through the Bugarri. Apart from the issue of whether Walman Yawuru country is recognised by the Yawuru people, Elsta was unable to point to any other differences between the customs, culture or laws applicable to the Walman Yawuru clan and the Yawuru people. However, as was the case with other Walman Yawuru witnesses, Elsta stated that permission of the clan members should be sought before entering upon clan country. Elsta had some difficulty in explaining the source of the requirement that permission be sought. Ultimately, Elsta’s explanation was:
‘…well, our system say you can’t just go to anybody else’s place without asking them and, you know – so, to let them know that you’re there.’
220 In the course of cross-examination, Elsta was referred to the Minutes of a 1992 meeting of the Broome Council (of which she was a member), which stated that the ‘Yawuru people had asked her to inform Council that they were not against the Crocodile Farm itself but against the proposed site’. When asked about her reference to the Yawuru people, Elsta stated that the Yawuru people:
‘Came together as a whole, because of their common language, and they might speak a little different dialect, but we came together. And before KLC and before all this land business happened, we lived in harmony.’
221 When Elsta was asked whether she always thought of Walman as being part of the Yawuru-speaking people, she responded:
‘Well, we thought we would be to start off but then they - we weren’t included in many things or, you know, we weren’t given any responsibility. It was always given to other people and, you know, you are speaking for this country, and we thought, well, you know, we can’t let this happen. We have to talk for our own country…’
222 Whilst it was clear from Elsta’s evidence that Mimi, Elsta’s mother and Elsta had special attachments to sites in what is now claimed to be Walman Yawuru country, the distinction she now makes between the Walman Yawuru clan and the Yawuru people only assumed a significance after disputes concerning the native title claim had arisen between them. That is consistent with the evidence of other Walman Yawuru witnesses.
223 Peter ‘Nugget’ Matsumoto, a grandson of Mimi’s, gave evidence similar to that given by Elsta. After Peter’s family moved back to Broome in 1949, he participated in visits to Mangalagun to get fish, shellfish, ‘bush tucker’ and also to go hunting. Peter said he was told by his aunties and uncles that Mangalagun was his family’s country. He said he was also told that his family were Walman Yawuru people who had rights to Walman country. As was the case with Elsta, he said that other old people ‘around town’ recognised those rights. He said that ‘our family’ and country were described by Mimi and his mother as ‘Walmanjano’, meaning Walman country. Peter said that when Mimi talked about her country she used the word ‘Walmanjano’. When the Walman Yawuru families were setting up a corporation for their native title claim, the name ‘Walmanjano’ was chosen, but later the name ‘Walman Yawuru’ was adopted as the name of the Corporation. Peter’s evidence about rai was similar to that of other witnesses. He said that he was told about rai by Mimi and his mother. He said he was born with it and it stays with him, but when he dies it returns to ‘Walmanjano’ country. Peter was also informed by Mimi and his mother about ‘skin sections’. Peter gave evidence similar to that of Elsta in respect of endeavours they had undertaken to protect important cultural sites in Walman Yawuru country. Peter gave evidence about the ‘Dog Dreaming’ story in Minyirr country and said he was told that it was part of the responsibility of his clan to look after Minyirr country.
224 Peter was cross-examined about the claim that membership of the ‘Walmanjano’ clan was based on matrilineal dissent. But, as with other witnesses, he was not able to explain how that principle had come down through the Bugarri. In fact, Peter appeared to accept that membership was by ambilineal descent because his wife was not Walman Yawuru or Yawuru, but he claimed that their children had rights to Walman Yawuru country because he was their father. When explaining the source of that principle, Peter stated:
‘The source of that principle comes down through Bugarri, through the Dreaming and it came through my ancestors, from their through the skins. And I’ve always known that it’s - thought to be known that it’s always came from the mother and right down to me, and then, from me down to my kids.’
225 In the course of his evidence, Peter was asked by me about his evidence that Yawuru was just a language:
‘HIS HONOUR: …You’re saying it’s just a language, but many witnesses have suggested it’s a lot more than a language. It gives rise to a community who share a common belief system, who share a common law ground, so that there’s a lot more in it than mere language. Why do you say that’s - you seem to say that’s wrong, or may be you don’t. Do you disagree with that?
PETER NUGGET MATSUMOTO: No, I don’t disagree with that. It is sharing, sharing the one beliefs of the Bugarri, of its skins, of its rais, other things. Yes, I do agree that that is all shared.
HIS HONOUR: By the – by people who speak the Yawuru language.
PETER NUGGET MATSUMOTO: Yes.
HIS HONOUR: If that’s right, then it’s much more than a language, isn’t it?
PETER NUGGET MATSUMOTO: Well, to me, it is, as I understand it, Yawuru is only the language of a group of people that share this area.’
226 Also, in his evidence, Peter asserted the requirement for clan permission to enter country. However, he was shown two statements filed in the present proceeding in which he had claimed that he had rights in Willie Creek and at Severo Creek, which are not in the Walman Yawuru claim area. Peter stated that he had rights there because his family members were born there and therefore those areas held significance for his family, even though the areas were in another person’s country. Peter explained there were no people in that country and therefore that there were no groups or tribes that were alive on that country so permission need not be sought. Peter was then asked the following questions:
‘HIS HONOUR: All the laws about access to country. What is the difference between your law in your people's country and the law that governs Yawuru- speaking people's country?
PETER NUGGET MATSUMOTO: Really, there isn't any difference.
HIS HONOUR: But, Peter, is it - is what you're really saying that, as long as the country is a shared country under the Bugarri, people who are born in that country get rights to it, as long as their mother or father comes from the country? Is that what you're saying, that - that the Bugarri country - - -
PETER NUGGET MATSUMOTO: Yes.
HIS HONOUR: - - - defines the boundaries?
PETER NUGGET MATSUMOTO: Yes.
HIS HONOUR: Is that what you're really saying?
PETER NUGGET MATSUMOTO: Yes.
…
MR IRVING: Well, Bugarri. Yes. If someone else who shares that same Bugarri, if his mother or her mother was born in Walman country, in the same way that your mother was born in Willie Creek, would that person have rights in Walman country similar to the rights that you have in Willie Creek?
PETER NUGGET MATSUMOTO: Yes.’
227 In re-examination, Peter was asked what differentiates Walman Yawuru and Yawuru law. Peter responded that he didn’t know ‘the law’ other people practised but under Walman Yawuru law:
‘We look after our ancestors’ country, we turn around and look after the jilas, burial grounds, the – the Gurlibil Rock that’s ours, Kunin, the law ground. They’re the sort of things that we do. What other people do, I don’t know.’
228 Philip ‘Pinky’ Corpus was born in 1917 and was 86 years old when he gave evidence. He was the eldest of the Walman Yawuru witnesses. His mother was one of Mimi’s daughters and died when he was about eleven years old. He stated that his grandmother, Mimi, and his grandfather, Severo, raised him. Philip was able to recite a number of Bugarri stories that had been told to him by Mimi and her brother. He was also familiar with the story of Mimi’s father’s death. Philip understood the Yawuru language, which he said his grandmother, aunties and mother spoke. Philip said that within his family he knew we were ‘Walman’ people and belonged to Mimi’s traditional country stretching ‘from Crab Creek, Mangalagun, around Roebuck Bay to where Town Beach is now.’ Philip said that Mimi and his mother didn’t use the word ‘clans’ but used an Aboriginal word for ‘people’ which he couldn’t remember. In her Aboriginal English, Mimi referred to her people as ‘our mob’. When cross-examined about how a person becomes a member of the group Mimi had referred to as ‘our mob’, Philip said that you get into it through the mother or the father. Philip also gave evidence corroborating the evidence about the custodianship of his people of the Minyirr land. Philip said that because Mimi was an important woman, when tribes ‘died off’ or were ‘no more’ they came to her ‘under this big umbrella for protection’. He added:
‘…in doing so they always spoke Yawuru language. They became one big Yawuru language tribe. The whole lot. That’s the way [Mimi] explained it to me.’
229 When Philip was cross-examined about whether Mimi used the words ‘Walman Yawuru’ he said his grandmother’s word was ‘Walmanjano’. When asked if Mimi ever said who her people or ‘mob’ were, he said:
‘Oh well, Walmanjano, yes and that – there was a lot of our people. The Yawuru people spoke the Yawuru language you see.’
230 When asked what Mimi said was her country, Philip responded:
‘Well, she said “Our country is here, Mangalagun, Crab Creek” and she said “From the Gantheaume Point coming down to the Roebuck Bay and across to Crab Creek and Mangalagun and on this other side it went as far as some other, but that's all, but she never mentioned - never once say that Cape [Villaret] was her place.’
231 Richard Corpus was born in Broome in 1956. He was the youngest son of Ringer Corpus, whose grandmother was Mimi. As Richard was the youngest of the Walman Yawuru witnesses, he was not able to source his knowledge from Mimi (who clearly had a detailed knowledge of traditional law and custom) or any other Walman Yawuru elders of her generation. Richard’s brother, Michael Corpus, gave evidence in support of the Yawuru claim and is said to have been excluded from membership of the Walman Yawuru clan because he hasn’t recognised the claim of the clan to the Walman Yawuru claim area. Richard claimed that his father had told him that he was connected to Walman Yawuru country. Richard gave detailed evidence of his own experiences in relation to the Walman Yawuru country and explained how his father had taught him to look after that country. Richard said that his membership of the Walman Yawuru clan is through descent from his father and mother and his grandmother, and that those rules had been passed down to him through his ancestors. Richard stated that, as traditional owners, the Walman Yawuru clan can given permission for others to use Walman Yawuru land. Richard also gave evidence about his father ‘going through Yawuru law’ and explained how he and his son wished to be initiated into Yawuru law at the Kunin ‘law ground’. Richard explained how, when he was growing up, his father taught him about Walman traditions, about bush food, plants and seafoods. Richard accepted that the customs and traditions of the Walman Yawuru people comes through the Bugarri.
232 Richard displayed a knowledge of bush foods and hunting. He was also able to be more precise than many other Walman Yawuru witnesses about some of the traditional stories and customs he outlined.
233 In addition to their general evidence, the Walman Yawuru witnesses also gave site specific evidence on visits to country. That evidence explained the significance to the witnesses of particular sites on Walman Yawuru country. Similar evidence was given in respect of numerous sites by Yawuru witnesses. The evidence justifies a general finding of a special attachment of the Walman Yawuru witnesses to the Mangalagun area.
234 None of the Walman Yawuru witnesses had been ‘put through law’ but some members of the clan had been ‘put through law’ some time ago. Their evidence was that they had been taught by Mimi or their parents to respect and not go near ‘law grounds’. Most of the Walman Yawuru witnesses knew their ‘skin’. The original source of that knowledge was Mimi or her children. They also had a general understanding of the ‘skin system’ and of the requirement to marry ‘proper way’, but clan members did not follow that rule, save that they did not marry someone who was biologically close to them. The witnesses seemed to have little knowledge of other people’s ‘skins’ apart from that of their own children. All the Walman Yawuru witnesses had ‘bush names’ that had been given to them by Mimi, save for Richard Corpus whose ‘bush name’ came from his parents. They also all gave evidence about having gone hunting, fishing and searching for ‘bush tucker’ with their respective families. The Walman Yawuru witnesses also recognised the importance of ‘looking after country’ and of having a general understanding of the spiritual significance to them of country and therefore of the need to protect it. The Walman Yawuru witnesses also gave evidence that Gurlibil (Turtle) Rock was an ‘increase site’ meaning that that when you hit or touch the rock it makes the turtles around it more plentiful. They gave evidence that Gurlibil is the Walman Yawuru’s ‘totem’ and also that the pelican had been of special significance to Mimi.
235 There were several features of the evidence of some Walman Yawuru witnesses that should be noted. The first relates to the practice of leaving food as some kind of offering at certain places. Such a practice was spoken of by several of the witnesses but is not recorded as a traditional law and custom elsewhere and is not supported as such by any of the evidence of the anthropologists or the Yawuru witnesses. For example, Sansom stated he had not previously encountered leaving behind food as an Aboriginal ritual. As with several other aspects of the Walman Yawuru witnesses’ evidence, evidence that the leaving of food was a traditional custom appeared to be confusing what some family members might practice as a custom with what is a traditional custom of the people or community of which the clan members form part. This custom is an example of an observable pattern of behaviour that is not a traditional custom of the Yawuru community.
236 Another feature of the Walman Yawuru case was that since the death of Ngobing Babere, the clan was said to have become a matrilineal clan, which O’Connor described as follows:
‘MR O'CONNOR: …when the female member of the lineage gives birth to males and females, all of them will be members of the clan. It’s in the next generation that the – you might call it the action of dropping children of one gender or sex takes place, and it is a mirror image of the patrilineal system in that the very same thing happened in the patrilineal system except of course in that case it was children of the female gender or sex that were, so to speak, dropped from full-time membership.’
237 Sutton stated that although he met some resistance to the proposition that there is no evidence of matrilineal country land holding groups, that resistance is based on ideological, rather than evidentiary, grounds. (P Sutton, ‘Kinship, Descent and Aboriginal Land Tenure’, Native Title and the Descent of Rights, National Native Title Tribunal, 1998, p 40 footnote) Palmer considered that matriclans were, in general, not accepted in Australian anthropology. He made the point that the crises that may have caused the patriclans to cease resulted in an evolution to a cognatic, rather than a matrilineal, system. As I later explain, I do not accept that a matrilineal clan exists under the traditional laws and customs of the Yawuru community.
238 The third feature arises in respect of the Walman Yawuru witnesses’ evidence about their rai was not site specific, although they did give evidence about a ‘clan rai’. In substance, the Walman Yawuru witnesses said that they had a ‘birth rai’ that came from the Bugarri but they did not specify a particular place where their rai came from, just that they were born with it and when they died it goes back to Walman country or, in some cases, to Mangalagun as their ancestor’s place. Palmer pointed out that that generalised view of rai was a ‘new idea’ because ‘conception rai’ is associated with a particular place or site.
239 Finally, the Walman Yawuru claimants claim to have, in effect, expelled Michael Corpus and his descendants from clan membership and therefore from having any rights and interests in the Walman Yawuru claim area. The ban on Michael Corpus appeared to be based on his support for the Yawuru claimants’ claims. Palmer’s evidence was to the effect that there was no anthropological support for such a ban. Although the expulsion was said to be based on traditional law and custom, there does not appear to be any proper basis for that allegation.
240 The Yawuru claimants’ submission in relation to the Walman Yawuru witnesses was that they relied on their evidence, save for the evidence that was said to support a clan-based title, to support their case. It was claimed that that evidence was relevant to the issue of establishing a traditional and observant Yawuru community.
241 It is correct that, in a very general sense, the Walman Yawuru witnesses gave evidence of a belief system in the Bugarri, rai, ‘bush names’, Gurlibil, and their duties in relation to Walman Yawuru country. That evidence was consistent with the Yawuru claimants’ contention that the present community remains a traditional and observant Yawuru community. However, it is clear from the evidence I have described above that the Walman Yawuru witnesses were generally among the least observant members of that community. That result is not surprising given the early urbanisation in Broome of the members of Mimi’s family and the racist policies that were designed to cut the links between family members and their traditional past. While those policies may have failed to achieve their purpose, it was plainly difficult for members of Mimi’s family to be educated about, or to retain, their traditional links with laws and customs that connect them with the parts of country with which they may have a special relationship. Those difficulties resulted in the evidence given about those links being sourced primarily in what was said by Mimi more than 50 years ago and even then in the most general terms.
242 The evidence relating to the acknowledgment and observance of traditional laws and customs by Walman Yawuru clan members is relevant to three issues. The first issue relates to the acknowledgement and observance of such laws and customs by members of the Yawuru community, of which the Walman Yawuru clan members form part. As the Walman Yawuru clan members only form a very small part of the overall Yawuru community, I am not satisfied that the evidence that led me to conclude that the clan members were among the least observant members of the community would lead me to change or reformulate any of the conclusions set out in my discussion of acknowledgement and observance of traditional laws and customs by members of the Yawuru community. The same conclusion applies in respect of my observations in relation to certain ‘customs’ such as matrilineal descent, leaving food and the expulsion of Michael Corpus, which I do not accept are part of ‘traditional’ laws and customs of the Yawuru community or of clans of that community.
243 The second issue arises from the observation at [58] of the second De Rose decision that s 223(1)(a) requires that claimants who are claiming group, rather than communal, native title rights and interests ‘establish that they have rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by that … group.’ Thus, the Walman Yawuru ‘acknowledgment and observance’ evidence is critical to whether the Walman Yawuru claimants can satisfy s 223(1)(a) in relation to their competing native title claim. As that claim can only succeed if I am satisfied that clan based native title rights and interests are possessed under the traditional laws and customs of the Yawuru community it is appropriate to first address that issue, which I do later in the reasons. If there are no such rights or interests then the second issue need not be determined.
245 Also, I have already noted how evidence was given by the Walman Yawuru witnesses in general terms and more as an assertion, rather than as an explanation, of any requirement that, under traditional law and custom, Walman Yawuru country is the country of the Walman Yawuru people or clan. Such evidence, based mainly on recollections of what Mimi said more than 50 years ago, is inherently unreliable. An example of the process of wishful reconstruction employed in such circumstances was the evidence of Edward Roe that a senior ‘law man’ asked Mimi for permission to use the ‘law ground’ at Kunin. The unreliability of much of the evidence given at the hearing was also evidenced by the written statements made by a number of the Walman Yawuru witnesses prior to the dispute which were inconsistent, or difficult to reconcile, with the claim they are now seeking to pursue. Also, my finding that the witnesses in question were among the least observant members of the Yawuru community leads me to have little confidence in the reliability of their evidence about their knowledge of the ‘traditional’ laws and customs of that community. I have already explained why, through no fault of their own, Walman Yawuru clan members were disadvantaged in that respect, but that cannot result in the evidence being accorded a greater reliability than it otherwise deserves. Also, as I have observed, the unwarranted readiness of a number of Walman Yawuru witnesses to elevate their assertion of a current practice or belief (for example, leaving food, expelling Michael Corpus and matrilineal descent) to traditional law and custom further undermined the reliability of their evidence on that subject matter.
246 Finally, the evidence of the Yawuru witnesses as to the content of traditional laws and customs, which I generally prefer to that of the Walman Yawuru witnesses, was that there was no requirement for permission to enter upon areas to which clan members had an attachment. Generally, the Yawuru witnesses evidence was detailed and sourced in the Bugarrigarra and was also supported by the evidence or previous statements of senior ‘law men’, including those now deceased. Further, that evidence was not beset by the problem of wishful reconstruction, misconception of current practice as tradition or an idealisation of the past, each of which was a problem with the evidence of many of the Walman Yawuru witnesses. I would add that I am not suggesting that those witnesses deliberately intended to mislead the Court or to give their evidence dishonestly. Rather, as stated above, it is my view that a number of the Walman Yawuru witnesses embarked on a process of wishful reconstruction of the past by, using Professor Stanner’s words, ‘making the past consistent with an idealised present’ or as I have put it above, misconceiving some current practices as tradition.
247 I later explain why I have concluded that merely having a special attachment to a particular area does not result in the possession of native title rights and interests in relation to that area. I am satisfied that the special attachment that has been testified to by the Walman Yawuru witnesses does not have any different result.
5. Anthropological Evidence
249 Three anthropologists gave expert evidence at this hearing. Palmer submitted four reports and gave evidence for the applicants. His research included field trips with the applicants over a total of 64 days. The Yawuru claimants also relied on the reports submitted, and the evidence given, by Dr Sullivan in Rubibi. O’Connor submitted four reports and gave evidence for the Walman Yawuru claimants. To enable him to prepare his first two reports, O’Connor met with the Walman Yawuru claimants for two and a half days. O’Connor’s next two reports were written after a further five day field trip. Sansom submitted two reports, a notice of change of view and gave evidence for the State of Western Australia. He researched written records without performing any fieldwork.
250 Dr Van Gent (‘Van Gent’), an anthropologist, submitted a report on behalf of the State of Western Australia. The report translated and interpreted the published work and the field notes of Father Worms (‘Worms’), a German priest who carried out linguistic and ethnographic studies in the Kimberley region during the 1930’s. Although Van Gent also gave evidence in relation to her report, it is appropriate to regard her evidence as outlining the content of the written field notes and reports of Worms which, in many instances, were translated by her from German to English.
251 No significant objection was taken to the admissibility of the reports, to the evidence of the anthropologists or to the extensive references made by them to the works of other anthropologists, many of which were tendered as exhibits. Rather, the parties argued that the weight to be given to the evidence was a matter for the Court (cf Sampi at [798]-[803] and to the authorities cited therein).
252 The anthropological evidence was important in three respects. First, it provided a conceptual framework within which the indigenous evidence of traditional laws and customs was to be considered. Second, it discussed and analysed the research of the earlier anthropologists. Third, it provided expert opinions on a number of the issues to be determined, including whether the Yawuru claimant’s native title was a clan or communal title.
253 Before turning to the detail of the evidence of the anthropologists, it is appropriate to set out my findings concerning the reliability of that evidence. I am satisfied that all of the anthropologists genuinely held the opinions they advanced. While Palmer was an honest, helpful and reliable witness, he was, to some extent, committed to the Yawuru claimants’ case. His commitment can, in part, be explained by the fact that his views were informed by the extensive field work and research he had carried out.
254 Sansom, who I also found to be an honest, helpful and reliable expert witness, was disadvantaged, to some extent, by not having engaged in field work in order to prepare his reports. Sansom’s evidence, although based on the evidence adduced at the hearing, was strongly influenced by the anthropological theories to which he subscribed. That is not a criticism of his evidence, but it did result in parts of Sansom’s evidence being based more on his interpretations of the writings of anthropologists than on the evidence given by the indigenous witnesses.
255 I found O’Connor to be the least helpful of the three main anthropological witnesses. Although his views were based on some fieldwork and were honestly presented I considered that he accepted much of the information provided to him without adequately testing or analysing that information and, as a consequence, he appeared to be more of an advocate for his clients’ cause, rather than an independent expert witness endeavouring to assist the Court. In the light of the criticisms I have made of the evidence of many of the Walman Yawuru witnesses, the failure of O’Connor to adequately or properly test or analyse the information he was given significantly undermined his reliability as an independent expert witness.
256 I propose to set out the anthropological evidence by reference to the main topics dealt with by that evidence.
(a) ‘The law’
257 Palmer explained the concept of ‘the law’ as ‘the way in which the power of the Dreaming and the spiritual component, the bugarigara, is interpolated into contemporary existence.’ Palmer said that in some instances this is defined in terms of a set of normative behaviours that have a referential base in the period of the Bugarrigarra, but in other instances ‘the law’ is used to talk about ritual practices. Palmer also noted that ‘the law’ is a term:
‘…also used to apply to the rules, sanctions, mores, cultural precepts and understandings of the correct manner to manage relations with others or the natural world. These are all believed to have been set down in the Dreaming and continue in contemporary dealings with the ever present authority of the spirituality of the Dreaming.’
258 Palmer stated in his main report that, for an individual, knowledge of the Bugarrigarra is attained through a prolonged series of ritual inductions.
259 Sansom stated in respect of the underlying ideology:
‘PROF SANSOM: …The Bugarrigarra ideology has been part of Aboriginal Australia for as long as there've been records, and the belief that it is an eternal reality is shared across the continent.
MR BELL: Yes. So the - the evidence, in essence, is that from beginning - from the beginning of time, the Bugarrigarra brought the southern tradition to the Broome Peninsula.
PROF SANSOM: And that is evidence of the belief.’
260 Sansom was shown a gender restricted map drawn by Patrick Dodson for the Rubibi hearing, which shows the path in the Yawuru claim area of the Bugarrigarra Dreaming according to the southern tradition. Sansom was asked:
‘MR BELL: That means, doesn’t it, that each and every Yawuru is responsible for the maintenance of that law and the observance of the laws and customs which were ordained by that law.
PROF SANSOM: Yes, I - the only problem I have with it is the gender one.
…
MR BELL: Well, putting aside the gender issue, that the women would have, say, a different order of responsibility - - -
PROF SANSOM: Yes.
MR BELL: - - - than the men, putting that aside, do you accept my proposition?
PROF SANSOM: I accept the proposition that, if that is the track of the law, the people who are on that track would have such a responsibility.
MR BELL: Yes. And, quite clearly, the Yawuru are on the track, aren't they?
PROF SANSOM: According to what I saw. [on the restricted map]
MR BELL: Yes. Okay.
HIS HONOUR: What do you mean by “responsibility for the law”?
PROF SANSOM: The responsibility to hold ceremonies in relation to the sites that are on that track.’
261 In his evidence, Palmer stated that:
‘DR PALMER: …The - the - the Bugarrigarra contains the idea that things were founded according to a system, according to - well, you cannot - you can't escape, in talking about it, from the word “law”, in Aboriginal English, because that's the way it's - it's seen, as - as something which set out the ways in which things have to happen, and always did happen, and always will happen, and that that cannot be changed, it cannot be challenged. And from that idea of - of the immutability of the law, spring a whole variety of ideas, the way people behave, how people define their relationship to each other and to the natural world about them.
…
DR PALMER: I suppose the other thing about Bugarrigarra is that it - it defines and informs, in my observation, the applicants' views about the essential spirituality of the natural world around them, and of their points of - well, their - their articulation with it, their interaction with it.’
262 Sansom stated that a tribal boundary ‘defines a sort of jurisdiction’ within which ‘the law’ of that jurisdiction applies. Worms recorded his observations of initiation ceremonies, which teach ‘the law’. They were conducted by men of different tribes at a tribal ‘law ground’ and were based upon tribal, rather than any clan, boundaries. He also gave evidence that within the tribal boundary, there is the spiritual connection to country. Sansom stated:
‘PROFESSOR SANSOM: The anthropologist’s question, and it might seem arcane, Your Honour, is where do your spirits come from, and do you have two, because your connection to the country is a spiritual connection.’
‘HIS HONOUR: …what you seem to be suggesting is that the traditional processes of Aboriginal society themselves contain provisions for contingencies. And you seem to be suggesting that the evolution which you've described in the first sentence can be regarded as one of the kind of contingencies that were inherent in traditional laws and customs. That's what you seem to be saying. Is that right or wrong?
PROF SANSOM: That is correct. As I said, it's further elaboration. And so, what you're dealing with is very rapid and unprecedented change.
MR BELL: Well, no - - -
HIS HONOUR: Yes, go on.
MR BELL: I'm sorry.
No doubt, Professor, I've already conceded that, but what I'm putting to you is that that's not what you advert to in these conclusions. What you advert to is the way in which traditional societies evolve in response to change by reference to inherent mechanisms, traditional in form. And what you say in paragraphs 3, 4, and 8 [of your interim report] is, in effect, that Yawuru social organisation now is the product of that kind of evolution.
PROF SANSOM: I say that, yes.’
(b) Rai and other totemic associations
‘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.”
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 [belief], 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”.
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.”’
268 Palmer explained that the concept of rai evokes a spiritual relationship between a person and a natural object, place or animal. This spiritual relationship is referred to by anthropologists as ‘totemism’. Palmer explained that the individual is seen to be ‘a living manifestation and a representation of a enduring and deep spirituality which is out there within and a part of the natural world’.
269 In his main report, Palmer noted:
‘A person has a singular relationship with the place where his rayi originated (often called, “rayi place”). Spiritually, the one is the manifestation of the other and they are conceptually inseparable.’
270 In his supplementary report in reply to Sansom, Palmer explained that ‘[t]hose with a special attachment to an area (for example, through rayi) exercise a direct role in looking after those sites, but also on behalf of the whole community.’ Palmer noted that a person’s rai was usually associated with a specific location. Palmer stated that the evidence of the Walman Yawuru witnesses who declared that their rai was Walman Yawuru country is a ‘new idea’ in his experience. Sansom was also of the view that rai is site specific. He stated that ‘it’s always a site which is the sort of home for these spirits’.
271 Palmer stated that the rai principle and the belief in spiritual imbuement is related to the concept of totemism. Sansom viewed rai as giving a person a totemic relationship to country. Sansom stated that anthropologists regard spiritual connection as involving ‘conception totems’ (rai), which are site specific, and clan totems of the kind described by Worms. Palmer explained in his supplementary report in reply to Sansom, that totemic association, which he likened to the principle of spiritual imbuement, relates people to the natural world and to places within it. However, Palmer claimed that the special relationship does not attribute a proprietorial exclusivity to any one person.
‘MR BELL: We've got a whole host of animals and birds and fish who are described in the evidence in a way that makes reference to the powers of these animals or birds or fish, their presence in the landscape having special meaning for the person - I'm trying to summarise all this here. There's a body of evidence to that effect. Is there a totemic principle at work in that regard?
PROF SANSOM: Yes.
…
MR BELL: … Well, would you accept that they have given evidence that they are one and of the country?
PROF SANSOM: Yes.
MR BELL: Is that too shorthand?
PROF SANSOM: No.
MR BELL: No. In other words they regard themselves and country as a part of a universal total?
PROF SANSOM: They share in the country, yes.
MR BELL: They share in the country? Okay. There's a totemic principle at work in that, isn't there?
PROF SANSOM: Yes.
MR BELL: Yes, okay. So it's clear, isn't it, that the relationship between members of the Yawuru community and their country is totemic in character?
PROF SANSOM: Yes.’
273 And:
‘MR BELL: What I am suggesting to you and I don't believe that we are arguing with each other about this, is that if the Judge were to find that the system of belief that prescribes the nature of the relationship between the Yawuru and their country is totemic in character, that is they share in and of the land, etcetera, then it's anthropologically open to him to conclude that that's a traditional evolution from whatever totemic system existed previously.
PROF SANSOM: Provided there is real behaviour that attests to the existence of that relationship, yes.’
(c) Language and boundaries
275 The relationship between the Yawuru language and the country in which the Yawuru language is spoken was a contested issue. Palmer related the language of a people to their traditional country:
‘It is believed…that the identity of land and the language of those who lived upon it was ordained in the bugarigara. The creative beings of that period that traversed the land gave the language that was from that day on spoken upon it, named the places where they performed their extraordinary acts in that language, and recorded these primordial acts for all generations in narrative and song, also in the language of that country. On moving into what is now identified as another country, they bestowed a different name to the land, the language and the people. And so they repeated the process, ordaining a different language, culture and identity for each successive country in turn which the people, who succeeded them, followed as their own. Claimants are descended from these first people and their ancestry is the first basis for their claim to be a continuing part of that culture that was first laid down in the bugarigara. Identity is therefore based on a belief in a continuing as well as ancestral link to the land which develops cultural practices, of which spoken language (Yawuru) is an important (but not necessary) part.’
276 When considering the analogous situation of the Jawoyn people, Palmer stated in his supplementary report in reply to Sansom that ‘[t]he Jawoyn…like some Yawuru, “are Jawoyn not because they speak Jawoyn, but because they are linked to places to which the Jawoyn language is also linked.”’ The Yawuru claimants’ claim that the boundaries of a country are set at ‘changeover places’, which is where Dreamtime beings start to speak different languages as they carry the myths and stories across the land. A number of witnesses described how the language of songs and stories changes at points marking the boundaries of Yawuru country, such as at Bungarrangarra and at Willie Creek.
277 Dr Rumsey observed:
‘…in the Aboriginal myths which associate language and land, no account at all is taken of people or peoples. Languages, or even mixtures of them, are placed in the landscape by the founding acts of the Dreamtime heroes. From that point on, the relation between language and territory is a necessary rather than a contingent one.’ (A Rumsey, ‘Language and Territoriality in Aboriginal Australia’, Language and Culture in Aboriginal Australia (M Walsh and C Yallop eds), Aboriginal Studies Press, Canberra, 1993, p 204)
278 Sansom in his main report expressed a similar view:
‘The territories of language groups are entities because people share in the same Dreaming tracks. All the members of a language group have an interest in the proper management of each and every part of the country as mismanagement may elicit a response from offended Dreaming and everyone will then suffer.’
279 Sansom accepted that Yawuru (or dialects within the Yawuru language) was spoken throughout the Yawuru claim area:
‘MR BELL: Yes. Do you accept that Yawuru is the language spoken by the people traditionally from Willie Creek to the southern extremities of the claim area?
PROF SANSOM: And that there are dialects within Yawuru, yes.
MR BELL: And there are dialects within that language?
PROF SANSOM: Yes.
MR BELL: Three, according to Hosokowa?
PROF SANSOM: Yes.
MR BELL: But there is not a shadow of doubt, is there, that the language is Yawuru?
PROF SANSOM: There is one language, yes.’
(d) Membership of the Yawuru community
282 In Rubibi, the anthropologists were in disagreement about membership of the Yawuru community. The State’s anthropologist, Dr Kolig, stated that the relevant community was based on a clan model with ‘primary rights’ in land conferred by patrilineal descent. The applicants’ anthropologist, Dr Sullivan, on the other hand, contended that a patrilineal clan based model is inapplicable to Yawuru country. I concluded that it was unnecessary to make a finding as to whether the traditional community at the time of the acquisition of sovereignty was determined by patrilineal or ambilineal descent, because I stated at 441 [142] that I was 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.’ The role of descent continued to be controversial at the present hearing.
283 Palmer detailed the two ways a person can be deemed to belong to country:
‘An individual may gain spiritual correspondence to areas of country by at least two mechanisms. The first is through descent from the father or mother, in all cases, the second by virtue of the origin of a person’s spirit conception. As a consequence of these beliefs, the relationship to specific areas of country is a matter of birth-place, manner or parentage. A person cannot, so it is understood, gain these spiritual associations by virtue of long-term residence, or by selection.’
284 Palmer said in his main report that ‘ancestry is the prime driver of cultural identity and that being Yawuru is a matter of descent (in either the male or female line, or a combination of both)’. In his evidence Palmer stated that the shared language, culture and laws of the Yawuru people enabled the word ‘Yawuru’ to be applied ‘to a language, a people and a country’.
285 Palmer said during the course of his evidence:
‘Well, the community is understood to have been ordained and to have come from the creative activities of the - of the Dreaming, and that - that collectivisation which is, you know, a representation of a people's identity, is understood to pass down from generation to generation via descent.’
286 Palmer pointed out in his supplementary report in reply to Sansom that descent was ‘an operative principle that runs through the fabric of the community’. Palmer noted in his main report that traditional anthropologists like Radcliffe-Brown considered the descent group to be patrilineal. Palmer also noted that in a culture in which there is ‘much esoteric male restricted knowledge, following the father has some obvious advantages’. Palmer’s view however, was that the fact of exogamy made the flexible model of cognatic descent more likely. He stated that cognatic descent was not arbitrary because a person’s identification was constrained by traditional considerations such as residence, ritual and community recognition.
287 Sansom stated:
‘Disregard for descent in the matter of landholding is exceptional in Australia. In my view, it is highly unlikely that the Yawuru, living in contact with representatives of both the maritime culture of their Northern neighbours and the culture of the desert people to the South, constructed a system in which descent did not traditionally feature…I cannot say that such a development was impossible; but it goes against the grain.’
288 In his reply to O’Connor’s report, Palmer stated:
‘In a system where rights to country are gained through both matri and patri-filiation, a child of parents from two different language countries can potentially exercise rights in both countries.’
289 Sansom in his initial report contended that whilst Aboriginal society was traditionally patrilineal, in recent times it has tended towards being cognatic or ambilineal. Sansom accepted that this move is a product of an evolutionary process because:
‘…developed systems of customary law generally contain sets of contingency provisions. In Aboriginal Australia, contingency provisions exist as secondary rules that allow people to become full members of local groups and establish connection to group lands even though they do not qualify for group membership on normal and primary grounds of kinship which are grounds for the entering of clans that cannot be gainsaid.’
Sansom noted that membership of a clan country may be ceded to a ‘non-agnate’ (someone without descendants from that clan) on a number of grounds including: the location of ‘conception dreaming’ (rai); birthplace or site of initiation in the clan territory; by formal adoption; by coming to knowledge of a country or ceremonies for the country and long residence there; by virtue of some kin connection; the birth of one’s child or location of one’s childrens’ ‘conception dreaming place’ in country; and by burial of one’s ancestors in a country. Sansom named some other factors and stated that his list was probably not exhaustive. He observed that generally in the classic systems of Australia, the major principles for the recruitment of persons to the membership of land-owning groups are supplemented by a set of ‘contingency provisions’ which permit a suitably qualified person to be admitted to membership of the group.
290 Sansom considered that matter in relation to Yawuru society and said:
‘In the Yawuru case, cognatic reckoning of kinship together with the conceptualisation of Yawuru lands as constituting a single “language country” are, in my view, related developments that are products of an (unconscious) evolutionary process whereby a new and flexible system grew out of classic landholding arrangements based on the division of country either into “horde countries” or into patriclan estates. In that evolutionary process, the contingency provisions of the classic Yawuru system were joined together and combined with the normal rules for recruitment of persons to groups and the assertion of connection with land to yield:
[i] an ambilineal (or cognatic) system of kinship and
[ii] a system of land tenure in which the internal boundaries dividing sub-divisions of land within a “language country” have tended to fall away (often to the degree that sub-divisions are wholly eliminated and become [as Hosokawa says] “defunct”).’
Sansom repeated the above statement in his ‘Conclusions and Issues for Further Consideration’ and added that this process of evolution may or may not have become germane to developments among the adjoining Karajarri people, and that there is a general trend towards the emergence of cognatic systems of kinship across all regions of Aboriginal Australia with increasing urbanisation. This process of evolution, Sansom describes as being:
‘…processes of the evolution of customs observed and traditions acknowledged by people who, through the generations, have maintained connection with the “language countries” of their forebears. Further…the evolutionary processes rely on the further elaboration of possibilities that (as provisions for contingencies) were always inherent in traditional laws and customs as these were enunciated and put into practice in classic times.’
292 O’Connor, on the other hand, declared that membership of the Walman Yawuru group is via descent through the matriline. O’Connor pointed out that all the available anthropological evidence suggests patrilineality, but suggested that, within the Walman Yawuru, a crisis situation arose post contact with the death of male clanspersons and the marriage of female members to non-Aboriginals, and that this:
‘…social crisis …resulted in a change from patrilineal inheritance of land to an adoption of the pre-existing parallel matrilineal system. It is also my opinion that, given the dangers of life in pre-contact Aboriginal Australia and the small population numbers involved, this crisis management system may have been utilised in the past, before the modern crisis triggered by European settlers.’
295 A further difficulty with the matrifiliation claim is that such a principle is not needed under the traditional ‘contingency provisions’ as those provisions need go no further than a change or adaptation to ambilineal descent, which would result in Mimi’s descendants through either sons or daughters, being regarded as Walman Yawuru clan members.
296 Also relevant is Sansom’s response to O’Connor’s claim of matrifiliation, which was that in modern Aboriginal society many factors have led to ‘a string of events of matrifiliation through the generations’ and this can have the appearance of matrilineal kinship, however:
‘…repetitive matrifiliation is accidental in that it is a product of contingencies and the result of a particular history. Repetitive matrifiliation does not constitute a principle of matrilineal descent.
…
Hence, in my view, the Walman Yawuru form one cognatic stock or family among the set of cognatic stocks that make up the Yawuru “tribal” or “language-owning” grouping.’
297 The evidence amply justifies the view expressed by Sansom.
298 There was also evidence as to adoption and incorporation into the Yawuru community. Joseph ‘Nipper’ Roe gave evidence of adoption under traditional law and custom. Patrick Dodson said that Joseph Roe’s grandfather, who had Nygina ancestors, and was born in and had his rai in Yawuru country, was a member of the Yawuru community because he:
‘…carried out responsibilities, was steeped in the law, understood those things, and behaved in this country in a responsible manner in terms of the sustaining and the keeping alive of the - of Yawuru culture and - and the responsibilities in relation to law.’
Under cross-examination in respect of that issue, Patrick stated:
‘There’s no rule in the Yawuru law system that says you cannot include that person as part of your community. There’s no rule. And in fact if that person is involved in the ceremonies, and in defence of the sacred places like Kunin and other places in this Broome area, then there’s no reason that that person doesn’t have the full benefits of the Yawuru and the Yawuru decide that.’
However, Patrick later agreed that there is probably a difference between being a Yawuru person and being a member of the Yawuru community, and that you could be a part of the Yawuru community but not be a Yawuru person.
299 Joseph Roe, when speaking of his grandfather, Lulu, said that Lulu was part of the Yawuru community although he didn’t have Yawuru ancestry, because he was born in, and his rai came from, Yawuru country; he spoke Yawuru; he performed responsibilities for ‘the law’ in Yawuru country; and he maintained and looked after Yawuru people and areas. When asked if his grandfather, Lulu, was a Yawuru person, Joseph Roe responded ‘only by his responsibilities’. Later, Joseph Roe was asked:
‘HIS HONOUR: Is the essence of what you’re saying is that if a person who may not strictly be a Yawuru person holds responsibility for law in Yawuru country that makes him a member of the Yawuru community?
JOSEPH ROE: Yes.
HIS HONOUR: Would it also make him a Yawuru person, or is that a more difficult question to answer?
JOSEPH ROE: Oh, that's a difficult one; you'll have to ask Richard when he comes, because I can’t…’
300 Gajai said that Lulu was a member of the Yawuru because of his actions in participating in ‘law ceremonies’. He described the way a person who was not Yawuru by ancestry could come to be a member of the Yawuru:
‘The elders, they look at you. They see what that man can do for people and their place. He look after the ground and he’s been there that long, more or less he’s like an Yawuru elder to us. We feel that he’s one of us, so he should be.’
301 Gajai also said that a person who had been accepted into the Yawuru community could speak for Yawuru country if given the right to do so by the ‘law men’. There was also evidence of other senior ‘law bosses’ (Tommy Edgar and Susie Gilbert) being incorporated into the Yawuru community.
302 Plainly, there is a serious question as to the nature and extent of the operation of the principles of adoption and incorporation spoken of by the witnesses under traditional law and custom. Although I need not resolve those issues in these reasons for judgment they demonstrate the difficulty inherent in ascribing to traditional law and custom any strict or rigid definition of a traditional community.
(e) Clan estates
303 The clan estate issue, which was closely related to the descent questions discussed above, was also strongly contested in Rubibi, where I made the following observations at 438-442 [129]-[142]:
‘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.
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.
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.
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).”
He later added:
“However, through the impact of western civilisation, sustained since the mid-19th 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.”
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.
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.
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.
…
In my view the question is not one of reasonable change but rather whether the [evidence] 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.’
304 The dispute in Rubibi related to the continuity, since sovereignty, of a community that had a traditional connection to the ‘law ground’ at Kunin, rather than as to whether traditional landholding in the claim area was based on a clan estate model. Nonetheless, the anthropologists in the present case were also in disagreement over whether, in pre-contact Aboriginal society, landholding estates in the Yawuru claim area were clan or people based. Palmer declared that the Yawuru community as a whole had rights to Yawuru country. O’Connor’s view was that there were specific clan based estates in the respective claim areas and Sansom claimed that the preferable view is that traditional rights ‘in country’, which included the respective claim areas, were conferred by way of patriclan estates.
305 Elkin described patriclans as a local patrilineal clan, that is exogamous (members must marry outside the group) and patrilocal (women live in the local countries of the men to whom they are married). However, he pointed out that in areas, which are rich in food resources, boundaries are not of ‘great practical importance’ and there may be ‘criss-crossing of ownership of areas in each other’s countries, and also of dialects.’ (AP Elkin, The Australian Aborigines, Fully Revised Edition, pp 76-80)
306 In order to understand the longstanding anthropological disagreement over the patriclan estate issue it is necessary to examine some of the anthropological concepts that have been developed in respect of Aboriginal land ownership and social organisation. At the broadest level of traditional Aboriginal society there is the tribe or language community, and within that group there are clans (local descent groups) and bands (hordes). Radcliffe-Brown described the ‘horde’ as:
‘…a body of persons who jointly possess, occupy and exploit a certain defined area of country. The rights of the horde over its territory [are] that no person who is not a member of the horde has the right to any animal, vegetable or mineral product from the territory except by invitation… This exclusive use of territory by a horde is modified by obligations of hospitality.’ (AR Radcliffe-Brown, Structure and Function in Primitive Society, Cohen and West, London, 1952, pp 33-34)
307 In his second report Palmer states that Berndt said that Radcliffe-Brown had not differentiated between two different types of units, the first being the economic and social unit (the horde or band) and the second being the local descent group or clan. (RM Berndt, ‘The Concept of ‘The Tribe’ in the Western Desert Australia’, Oceania, vol 30, no 2, 1959, p 81 at 95) Generally speaking, the anthropological view developed at that time was that the local group or clan had spiritual attachment to a number of sites in an area which comprised the ‘clan’s estate’, and, generally speaking, it was the local group that was the ‘land-possessing group’. (ibid at 103). There was, however, also a ‘land-using group’, namely the band, made up of people from members of various local groups, comprising one or more families. Palmer explained:
‘A person was both a member of a local group and a member of a band. Over time, a person might be a member of several bands (as choice and circumstances dictated), but could never be a member of any other local group than the one into which he was born.’
309 Professor Stanner observed that the Aboriginal ideas of title and ownership were derived from the ‘historic–genetic relation of a particular kind of grouping of persons to a particular territory in animum’. Sansom explained that the ‘historic’ related to the clan totem and the ‘genetic’ related to the ‘conception totem’. Professor Stanner’s view was that the clearest and most unequivocal landholding relationship was that ‘between a patrilineal descent group (clan) or similar group and a more or less definite tract or region or set of localities or places.’ (ibid p 3)
310 Professor Stanner explained that:
‘In Aboriginal understanding human corporeal life was indivisibly in pair with spiritual life. Land was the physical vehicle, and a medium of symbolic expression, of the connection between the two components.’ (ibid p 4)
311 The corporeal and spiritual elements are believed to cohere so indissolubly that the conception of a person or clan or similar groups necessarily included land or territory as intrinsic to their definition. The members of the group were related to the locality jointly, which meant that for each and every person of the group there was unity of title, of possession, of interest and of time. Professor Stanner developed this relationship as a conception of an ‘estate’ in land, which entitled the group members to an acknowledged dominion over a territory. (ibid pp 4-5)
312 Professor Stanner stated that ‘[i]n ordinary circumstances ownership of such an estate could not be taken away, given away, lost, or abandoned.’ He explained that that was ‘the reason why the Yirrkala clans will listen with incredulity to any assertion that the Crown “owns” their land.’ However, he accepted that it was possible for a group to share, and in some circumstances even to relinquish, possession in a de facto sense. It was in that context that Professor Stanner accepted that, in order to exploit a countryside, the Aborigines formed bands of variable size and persons, which necessarily had a mixed clan membership because of clan-exogamy. He also said that other causes led to a mixed composition. Bands of that kind hunted, foraged, camped, took part in the ceremonies and participated in other activities on – in other words, used and occupied – a countryside without apparent necessity to make the operations of living on and within a region coincide with the pattern of legal ownership and legal possession of it. Professor Stanner observed that, as a consequence, the actual occupation and use of land did not have to accord strictly with the legal pattern of ownership and possession of the land, but occupation and use were conducted under ‘colours of rights’. However, as with ownership, legal possession was central and crucial to much of the religious, social and institutional life because of its reference of body and spirit to a particular territory and, through the territory, to the formation of the world and the ontology of human existence. Professor Stanner stated that the doctrine of ownership and possession:
‘…formed the anatomy of a plan of reference for personal identity, group membership, kinship relationships, descent, marriage, religious and some non-religious observances, and even some mundane transactions of life.’ (ibid pp 5-7)
313 A clan, being unable to subsist sole, had to subsist through families and larger bodies, resulting in the use of clan land by non-clan members for a number of purposes. However, Professor Stanner observed that such use was restrained by the recognition, either tacitly or expressly, of a clan’s legal rights of ownership and possession of particular tracts and places. (ibid pp 7-8)
‘At the same time, as a necessary incident or consequence of life the estate was subject either in animum or in rem to several classes of less precise rights or colours of rights which lay with people who were not of the true joint owners. Certain classes of secondary right-holders can be distinguished.
(a) Clan-wives, though in no sense “owners” of their husbands’ lands, had virtually an unconditional right of residence on and occupation and use of their husbands’ lands in rem;
(b) a husband had a clear but probably somewhat less express right to visit, occupy and use his wife’s clan lands;
(c) a woman’s children had an express right to visit, live on, occupy and use the lands of her patrilineal clan and in many cases they had as well some degree of right to the lands in animum;
(d) particular men and women with acknowledged ritual duties (e.g. in initiatory or commemorative rituals) involving persons or categories of persons in another clan (and especially in another moiety) had several kinds of rights, which have probably been analysed insufficiently, but included
(i) an express right in personam over the subjects of the rituals,
(ii) an express right to “manage” the rituals,
(iii) possibly a right in rem over the rituals themselves insofar as they were incorporeal hereditaments of the clan whose affairs were being managed, and
(iv) a right of entry into that clan’s domains and, while there, to support from the resources of that clan;
(e) a somewhat undifferentiated general public right to limited visitation, occupation and use by the owners’ consent.’ (ibid pp 8-9)
315 It is clear from Professor Stanner’s paper that, although he believed that the general principles he stated had a fairly close application to Yirrkala, the extent to which they may apply elsewhere had to be ascertained by reference to the particular area in question. Professor Stanner, expressed one of his conclusions as follows:
‘I hope to have made it appear probable that there were anciently established concepts of ownership, title and estate; that there was a code of rights in land; that the rights were vested, not severally in individual persons, or in common between persons, but jointly in a particular kind of kinship group; that the rights went beyond usufruct; that proprietary right was recognized; and that the qualifications of proprietary rights in no way prejudiced legal ownership and possession but were practical concessions to a rational ordering of activities and the well-being of people in a particular form of society.’ (ibid p 9)
There was little dispute between the anthropologists about the principles enunciated by Professor Stanner. The dispute between them related to whether those principles applied generally throughout Australia but, in particular, whether they were applicable to the Yawuru and the Walman Yawuru claim areas. The parties were also in dispute about whether, under traditional law and custom, Professor Stanner’s dichotomy between the holder of primary and ‘secondary rights’ did not apply to the Yawuru community because it was an ambilineal or cognatic community with rights in respect of land devolving primarily by descent from either parent.
317 Nonetheless, in addressing the actual situation in the Yawuru claim area it is appropriate to start with the views expressed in the early 1930’s by Elkin and the Piddingtons concerning patrifiliation in or near the Kimberley region in Western Australia. Elkin observed that patrilineal descent of the totem (and therefore, implicitly if not explicitly, to the spiritual connection to the totem’s country), which prevails in most of the Kimberley Division, is dependent on the fact that ‘children belong to the horde-country of their father and therefore to the totem or totems associated with it’. However, Elkin states that more research remains to be done ‘before the roles of the father and the locality in totemic descent can be finally determined’. (AP Elkin, ‘Social Organization in the Kimberley Division, North-Western Australia’, Oceania, vol 2, no 3, 1932, p 296 at 330)
318 At about the same time as that Elkin’s article was published, the Piddingtons suggested that the clan/horde ownership model did not appear to apply to a certain sub-group of the Karajarri where any horde may go on hunting expeditions on the territory of other hordes without asking permission. (M Piddington and R Piddington, ‘Report of Field Work on North-Western Australia’, Oceania, vol 2, no 3, 1982, p 4342 at 351) Later R Piddington responded to criticism of his earlier field work by stating that Karajarri sub-tribes in the coastal areas ‘never had any’ horde boundaries or objections to trespass, unless the latter were determined by factors extraneous to land tenure and utilization, such as accusations of sorcery or the theft of women. (R Piddington, ‘A Note on Kardjeri Local Organization’, Oceania, vol 41, no 4, 1971, p 239 at 240)
319 The area involved in the Piddington’s report appears to be one in which the southern tradition was practiced. In his later note, R Piddington was critical of the emphasis placed by some writers on European conceptions of ownership, rather than on Aboriginal conception. He stated:
‘Aboriginal conceptions…are generally based on sacred spots marking points in the tracks of or the doings of culture heroes of the Dream Times. These spots mark the spiritual centres of local groups in a manner which might be compared with gravitational fields. Groups might wander for a distance around their sacred spots, often crossing into the margin of the “gravitational fields” of other groups but always remaining spiritually attached to their own.
Though Aboriginal land tenure thus defined is primarily a spiritual concept, it also had an economic basis. As Radcliffe-Brown pointed out many years ago, the Aborigines’ knowledge of their environment was very largely a localized knowledge of the topographical distribution of supplies of food and water. The further a group wandered from the spiritual centre of its activities the more limited would this essential kind of specialized knowledge become.’ (ibid)
320 Sansom accepted that there are examples of ‘shared country’ and agreed with the observation of Peterson and Long that the Radcliffe-Brown model, with its exclusive focus on patrilineal rights and interests is too group-oriented and ignores the variety of individual interests in estates and their regional variation. (N Peterson and J Long, Australian Territorial Organization A Band Perspective, Oceania Monograph, University of Sydney, 1986, p 64) Sansom also agreed generally with the observation of Sutton that:
‘In particular, the evidence for the dominance of patrilineal descent groups or similar formations was not as widespread as Stanner had considered it, and even groups which formerly had such structures have in many or most cases now modified them in a range of ways. Furthermore, the extent to which bands were, in bush times, constituted of a strong core or nucleus of people from a single estate and hence of a single descent or totemic group focusing its residential pattern on that estate, for example, is greater even in Stanner’s formulation than the empirical evidence will support.’ (P Sutton, ‘Aboriginal Country Groups and the ‘Community of Native Title Holders’’, National Native Title Tribunal Occasional Papers Series, no 1, 2001, p 19)
321 In his main report, Palmer set out his views of the rights of the band and of the local group:
‘Anthropologists are generally agreed that the band used the land over which they ranged. By this it is understood that its members exploited freely the resources of the land: vegetable, meat, fish, mineral, everything that was necessary for normal daily living. There is no evidence that the members of the band deferred to local group representatives of the land upon which they happened to be gaining their subsistence. The distinction between a land using group and a land owning group implies that the latter have a higher form of title than the former. Just how this might be so has not been explained. The legitimate use of a resource necessarily implies a right to that resource. A right is a concomitant of some form of ownership. Band members exercised these rights, and therefore can be said, in this sense, to be owners of the country over which they ranged.
…
The answer to the question, “who owns the country?” is then dependent upon the precise subject of the right of the owner. Rights to an area’s resources, are (and were), in my view, the prerogative of a community comprising a number of bands whose members together traversed the land when using its economic resources. The land was linguistically bounded by reference to mythological ordained enculturation and manifest in sites that marked the beginning or end of the community’s cultural territory. Rights to the intellectual properties of the land, on the other hand, as are articulated through religious belief and practice, reside in component parts of the bands which are local groups…The bands, together, as a community, contained within the parameters of a language or cultural territory, used the country and had rights to do so. To argue otherwise would be to reify local groups and ascribe to them an economic function and reality they clearly never had.’
322 Palmer’s view is that the range of band members was determined by economic necessity (as well as by social, cultural and ritual demands), so that in an area of relative plenty, such as in Yawuru country, travel in the course of gaining a livelihood need not have been extensive. Palmer noted that:
‘It is likely that, in normal times, those living in the far south of Yawuru country, for example, would not have much occasion to visit areas in the far north and north west of Yawuru territory, and vice versa. However, the right to visit more distant parts of one’s cultural country were present, dormant or latent for the most part. However, these rights could be activated in difficult circumstances, such as an extreme weather conditions, a period of prolonged drought or flooding, neighbouring hostilities, ritual demands, marriage alliances and so on.’
323 Palmer stated that the relevant community could be described as follows:
‘[P]rior to 1829, the Broome area would have been occupied by a community that probably called itself, Yawuru, by reference to its language and cultural territory. The community was comprised of numerous labile bands, some of which were named, or some of which together were named, whose members had a binding and fundamental spiritual attachment to special places in the country. Together, these bands were recognised by all others (neighbouring language communities) as having the rights to use and occupy Yawuru cultural territory. Senior band members, as representatives of local groups, had responsibility for the intellectual property that concerned spiritually potent sites within the country and with which they had a special and passionate relationship, which included a duty to physically care for the sites and adjacent areas.’
324 Palmer accepted that individuals had, and continue to have, a strong emotional and spiritual tie to certain places, and also accepted that identifiable groups of people lived in particular geographic areas. In his supplementary report in reply to Sansom, Palmer observed:
‘Since an important means of recruitment to ownership of land is via descent…membership of a descent group also implies rights to country. In this sense, then, it is members of the local descent group (but operating as band members) who exercise rights to country. In Yawuru religious belief, however, rights to specific sites or areas are activated through ritual inductions for a Yawuru person or gained from spiritual association through the rayi [principle].’
In his main report, Palmer stated that he does not accept that the anthropological evidence shows that groups of people with special connections to particular parts of country demonstrate the existence of exclusive land-owning groups.
325 Palmer concluded that ‘[r]ights are exercised with due regard for an individual’s spiritual attachment to country, but are not subject to them.’ He concluded that ‘rights to the cultural territory reside in an aggregation of the groups in the form of a community rather than in each group with respect to small parcels of land. I consider that this modern arrangement is founded upon a traditional tenure system.’ Palmer noted in his fourth report, that when ‘clan exogamy and cognatic descent are the norm multiple attachments to a number of areas will be the consequence.’ He rejected the view to the contrary of the early ethnographers stating that they failed to ‘provide clear evidence of a system bounded clan estates’. Palmer also rejected his previously expressed view in which he had accepted the clan based estate approach. Palmer agreed that clan descent groups had relationships with particular Yawuru areas or places but rejected the proposition that under traditional law and custom those relationships conferred the right to exclude other Yawuru people from those areas or places. Palmer drew a distinction between a Yawuru person informing a clan member of a visit as a ‘courtesy’ and a Yawuru visitor only being entitled to visit if ‘permission’ to do so is granted.
326 Palmer subsequently qualified the analysis in his main report, noting that it is not possible to ascertain exactly how the pre-contact society operated, but stated the propositions that he put forward ‘constitute a view as to how things might have been’ based on the work of other scholars. He concluded by contending that the views he put forward ‘are not unreasonable, in the circumstances’.
327 O’Connor’s evidence focused on the Walman Yawuru as a community in its own right. Thus, he considered the laws and customs of the Walman Yawuru people on the basis of Yawuru merely being seen as a language and Walman Yawuru being a dialect of Yawuru. O’Connor concluded that Walman Yawuru is a clan and that the community who spoke the Yawuru dialects was not a land-owning community because land was owned by individual clans. O’Connor contended that the Walman Yawuru continue to have a connection with Walman Yawuru country, as they occupy the traditional lands and have a duty to teach the next generation the correct traditional method of collecting the fruits of the land and waters in order to perpetuate the spirituality of the land. In his third report, O’Connor stated that the Walman Yawuru do not recognise an overarching communality with the applicants, but rather, see themselves as having a distinct heritage, history and dialect.
328 O’Connor emphasised the clan nature of the Walman Yawuru and stated that the Walman Yawuru:
‘…are adamant that, in accordance with traditional law and custom amongst the peoples who spoke dialects of the Yawuru language, permission should be sought from members of the relevant clan group before going onto their clan lands for the purposes of residence, temporary or permanent, or carrying out traditional practices, including food gathering.’
O’Connor saw that as a form of permission as it gives the other party the right of refusal, and involves ‘delicate issues of manners and expected or appropriate behaviour’.
329 O’Connor states in his third report that:
‘…certain groups of people, by virtue of association with particular natural species and descent from ancestors who were the living embodiment of the spiritual essences of those species, were tied to specific tracts of land in perpetuity.’
330 When asked about the source of the right of the Walman Yawuru clan to ‘speak for country’, O’Connor stated that the ‘right to speak comes from their religion’. He was then asked:
‘HIS HONOUR: Now, have any of the Walman Yawuru respondents claimed that the source of their right to speak for country is the southern tradition?
MR O'CONNOR: No, they claim that their right to speak for country is their birth in the land and the fact that they carry the spirit of that land within them.’
331 O’Connor’s general advocacy of the Walman Yawuru case on the basis of his unquestioning acceptance of what he was told sits uncomfortably with the detailed ‘Report on the Broome Aboriginal Heritage Study’ that he prepared in 1992 after engaging in ‘wide-ranging regional consultation [with] Aboriginal elders’ in field trips over three months. One conclusion O’Connor drew from those consultations was that the ‘Yawuru people are the traditional owners of the Broome area’ and that certain named Yawuru elders (who were not members of the Walman Yawuru clan) had the right to speak for the Broome region. That conclusion is consistent with the History Report in the present case of Dr Fiona Skyring which explains how, when Aboriginal elders were given their first chance to speak publicly about their country and its importance to them, they claimed ‘that Broome and the surrounding areas were Yawuru’. Those conclusions are also supported by the evidence of Joseph ‘Nipper’ Roe, Paul Sampi and Barrett to the effect that, notwithstanding their long association with the Broome area, prior to native title being an issue they had only heard people speak of the Yawuru people, rather than of any of the clans of the Yawuru people. For example, Barrett, an anthropologist who worked in the Broome area with the Yawuru community for a number of years, gave evidence on behalf of the applicants that:
‘In the years that I’ve worked here, nobody has ever talked about clans. The oldest people, such as Susie Gilbert’s husband that passed away, Cissy’s [Djiagween’s] brother that passed away, would have been born around 1920. There would have been people around then born in 1860. They were always very emphatic that it was one people. When I’ve worked in other areas, people talk about clans: they don’t talk about them here.’
332 I regard the information set out above in O’Connor’s 1992 report as being more reliable than the views he expressed on the basis of the information he received from the Walman Yawuru witnesses. The report was based on extensive consultations with ‘Aboriginal elders’ and field trips ‘over three months’ and preceded any native title claim.
333 Sansom, in his first report, posited the question: ‘Was the Yawuru system originally a system of tenure based on the patriclan estate or has it always been a “flexible” system of the Western Desert type?’ Sansom observed that in the Western Desert, a flexible model of land tenure was required because of the harsh conditions, which required people to move around constantly in line with the seasons. He stated that necessity for a wide-ranging use of the land ‘precludes the development of restrictive and possessory forms of land tenure’. Yet, in richer zones less prone to drought, Sansom’s view was that flexibility is not a necessity, and there was every reason to maintain the clan estate, which was the basis of the older male’s power.
334 Sansom then posed the question: ‘Did the Yawuru have it hard?’, because he reasoned that, if Yawuru country is rich country, then a normal restrictive system should have applied. In his initial report, Sansom considered the problem that the Yawuru faced was water shortages at certain times of the year, and stated that it was speculation to respond that this meant that the law of trespass did not apply. Sansom’s initial view was that ‘Yawuru land was classically sub-divided into sub-countries and that the sub-countries thus distinguished were associated with sub-groupings of the Yawuru peoples.’ He concluded that he was not persuaded that the Yawuru people experienced so much difficulty and privation that a reversion to the system of desert emergencies was called for. In his main report Sansom concluded that traditional Yawuru country was well endowed, and his anthropological expectation was that such a country would be divided into clan estates in which ‘primary rights’ would be held by members of the totemic clan.
335 Sansom noted that if exclusive ownership and possession of land is asserted, then there must be a law of trespass, which is characterised as entering another’s land without permission. He contended that it is a general feature throughout Aboriginal Australia that to be granted permission the stranger needed to be made known to the ‘Dreaming Power’. Sansom said in respect of that permission:
‘PROF SANSOM: Yes. The essential point that I make about the giving, or withholding of permission, indeed, is that, in my understanding, in all the places and situations I know about or have read about, the granting of permission entails bringing the stranger into a relationship with the powers of the Dreaming. It is not a matter of just saying yea or nay to access the country; it is a matter of bringing people to the Dreaming, and therefore transforming them by creating a relationship between them and the Dreaming by virtue of a ritual act.’
336 Sansom argued that fixed ‘Dreaming spots’ are essential to any tenurial system:
‘They answer this problem: How can a people often thinly spread over extensive territories, patrol and keep their borders and so enforce the law of trespass by keeping interlopers out? …an answer to the problem was found in religion. If trespass is made a major act of sacrilege, then Dreamings may punish the trespasser.’
337 Sansom also looked at the anthropological evidence in respect of the neighbouring Karajarri tribe because a number of anthropologists, most notably the Piddingtons, researched Karajarri culture in the 1930s. Sansom stated that by the time the Piddingtons came to do research among the Karajarri, ‘they dealt with a remnant population’. Sansom also states that the research showed that there were inland and coastal dialects. He claims that the Piddingtons found that in the coastal territory, the inland Karajarri applied no rule of trespass, with each horde or band hunting freely ‘over the territory of any other horde, without asking the permission of the owners, who would not object’. (M Piddington and R Piddington, op cit p 351) He claims that the Piddingtons accepted that, although the general Australian practice is that each horde owns a specific territory over which its members may hunt, but over which no other horde members may hunt or camp without permission, this rule does not apply to coastal territory in Karajarri country. The point Sansom appeared to make is that the coastal territory is merely an exception.
338 Sansom examined Palmer’s model in relation to connection to country and stated:
‘The Palmer model allows Yawuru to own Yawuru country just by being conceived and just by being born; and ties with country are intensified by:
[i] just living consistently on the land; and if one is lucky,
[ii] the fact that one’s birth-site happens to be within the bounds of the Yawuru domain.
The natural system characterised above requires neither detailed knowledge of song nor rite nor traditions to sustain those “spiritual associations which are common to all members of the community.”’
339 Sansom agreed with Palmer that clans or local groups were seldom seen as an actual group (Palmer called them a ‘virtual’ group). But Sansom said that the clan existed behind all the material activities of life.
340 However, in considering O’Connor’s version of the Walman Yawuru as a land-owning clan, Sansom observed:
‘This is a region in which men of ceremony are active and in which land-ownership is ratified through ceremony and through the holding of sacra. I believe that the sacra that relate to sites in the land claimed as Walman Yawuru and Minyirr country, may be in the keeping of lawmen who may or may not be Walman Yawuru. Mr O’Connor does not deal with ceremony in a region where any landholding group must somehow fit into and participate in the regional rounds of ritual performance.
In my view, the Walman Yawuru grouping in its isolation does not constitute a traditional grouping with a distinct and independent system of law and custom and, therefore, does not, by and of itself, qualify to be recommended for consideration as a community of native title holders.’
341 Sansom later considered the transmission of knowledge and noted that adult male band members were never all equal with equal economic access to country:
‘Management of the land proceeded from authority, the authority of the holder of higher rather than lesser rights to knowledge of the country and its Dreamings.
Just as rights in country all flow from spiritual connection, so authority either to speak for country or to care for country flows from the holding of transitive rights to knowledge by a person who rightfully exhibits the marks of status. There is no divorce between Rights Temporal and Rights Spiritual; all rights are laid down in the Law and the activation of those rights is grounded in ritual endowment right through from the minor rite that is the granting of permission to the major and time-absorbing rites of endowment in which the authority of elders is grounded degree by degree.’
342 Sansom criticised Palmer’s theory because it privileged the act of using the land by hunter-gatherers, which is a theory based on land use that applied to people who can no longer be seen as living in bands and using the land in the old ways. He concluded:
‘Because the primary tie with land is a spiritual connection and because ownership does not derive from a particular pattern of use but from spiritual responsibility, Aboriginal ownership can be sustained as long as people are active in perpetuating that armature of things spiritual that make people and country one.’
‘1. The attested existence of the distinct Yawuru language and its dialects together with Yawuru names for sites, places, features and products of the determination area taken together with myths in the Yawuru language pertaining to these sites, place, features and products, leads one to conclude that the determination area was associated with a speech community whose members maintained and communicated with one another in the Yawuru language and its dialects at the time of sovereignty.
2. The dialects of Yawuru were, in all probability, associated with dialectal sub-groups of speakers who, in turn, were probably associated with distinguishable sub-countries within an encompassing Yawuru country.
3. Furthermore, the existence of separate Yawuru lands is and was acknowledged by neighbouring peoples who enjoy and enjoyed ceremonial relationships with Yawuru. Association with land is expressed in land-related myths. Those with title to land sing or tell those parts of the myth cycle that pertain to their own respective countrysides and have the exclusive right to tell or sing those parts of the myth cycle that pertain to their own respective countrysides. In this way, Yawuru title to land is asserted against the world.
4. The society connected with the claim area at the time of sovereignty may be identified as the grouping of people who own the Yawuru language and through ownership of this language assert ownership of the countryside whose aspects are designated in the Yawuru tongue and whose land-related myths are sung or told in Yawuru.’
345 Sansom then went on to identify what he considered were the traditional laws and customs acknowledged and observed by the identified society at the time of sovereignty. The laws and customs he identified included marriage rules, connection through rai and place of birth, rites for the disposal of the dead, male initiation rites, gender restricted knowledge and the importance of ‘increase sites’. Sansom also argues that the northern and southern traditions are distinct and pertain to ‘distinct and distinguishable countries’.
346 Sansom conceded that the part played by descent, the existence of clan estates and the patrilineal clan as the land owning group was in dispute, and concluded ‘[f]or my money, the Yawuru probably had clan estates.’ Sansom differentiated between a clan and a tribe:
‘MS WEBB: Is there – there is a difference between a clan and a tribe, Professor Sansom.
PROF SANSOM: Yes.
MS WEBB: Is that the case?
PROF SANSOM: Yes, clans to be groupings with exogamy. They have to marry out.
MS WEBB: And what is the situation with tribes?
PROF SANSOM: Tribes are married to communities. They tend to be – tend to be endogamous. Most of the marriages of their members tend to be within.’
347 However, in observing ‘the law’, Sansom said there is a close link between the clan and the tribe. Sansom stated:
‘HIS HONOUR: But what would happen if, on one of the clan estates, the rituals were disrespected? What would the right or interest be of the members of the adjoining clan estate to take measures?
PROFESSOR SANSOM: They could take measures, and they’d rally a crowd, and come up and do something.
HIS HONOUR: Without permission?
PROFESSOR SANSOM: There’s an override rule when you’ve got sacrilege. Oh, and I think too, lawman can move between law grounds - which is not a right to another estate - on law business.
…
HIS HONOUR: In other words, there’s an interest in surrounding clans for respect of the rituals that the Dreamtimes may require.
PROFESSOR SANSOM: Yes.’
348 Sansom accepted that identification of a person with a traditional tribal community involved, inter alia, descent, community acceptance and spiritual connection. In respect of community acceptance he stated:
‘PROF SANSOM: Yes. Community acceptance being very important, and as we noted with the fact that a clan can’t exist sole, it simply means that, in a sense, everything that lawfully happens within a clan estate has to find its ratification in the community of consensus; otherwise they’ll be baled up for doing it wrong way.
And so the community, and I like to call it a jurisdiction in a non-legal sense, but the jurisdiction to which these people are referred is – is always made up of a (therality) of clans and might be a sub-section of a tribe or it might be a whole tribe. So there is a communal oversight and interest, and you know, I say that it’s reactive.
People don’t interfere with you if you’re doing things right or don’t have the right to do so, but if you – if you do things wrong, they have the right to arraign you and call on the rest of the community to support them in their accusation and progress towards correcting wrong.’
‘MS WEBB: And you’ve referred to primary and secondary holders in clan estates. Who are the primary right holders in clan estates?
PROF SANSOM: The members of the patri-clan.
MS WEBB: And what persons have secondary rights in a clan estate?
PROF SANSOM: Matrifiliates, people with conception Dreamings in the clan land, people who are on the same Dreaming track as the track associated with the clan totem. Those are the major categories.
MS WEBB: Would you – I think you’ve just said it, but can I just confirm: would you have primary rights in a country not your clan estate if you had your conception place there?
PROF SANSOM: Not primary rights.
MS WEBB: Would you have secondary rights?
PROF SANSOM: Yes.
MS WEBB: Yes. And what are secondary rights, Professor Sansom?
PROF SANSOM: There are two kinds of secondary rights. One is based on a spiritual connection, and that is the conception Dreaming connection. In this country it’s a rai connection. And that is a relationship with the clan country - as Stanner puts it “in anima”. And the other people do not have spiritual connection with the clan country if they come through the matri-line.
They are connected to the people of the clan, and for Stanner, and this is the point of his distinction, they have rights in personam in clan members. Then, the other class I distinguish is the other main class in matters of succession, persons who are on the same Dreaming track as the totem that is contained in the clan, such persons do have a spiritual link with the clan but it is of a weaker or diluted kind.
MS WEBB: You say they have a spiritual link with the clan.
PROF SANSOM: Yes. And the clan totem.
MS WEBB: And the clan totem.
PROF SANSOM: Yes.
MS WEBB: What are their rights in the clan country?
PROF SANSOM: They have an interest of oversight in the clan land because they will be damaged in themselves if the keeper of the clan country fails in proper looking after duty for country, and allow sacrilege to happen on that land. The people with the totemic link to that clan are endangered, and this is –and so they have a real interest in watching over and making sure that their neighbours don’t make a mess of things.’
350 In respect of the clan model, Sansom makes the following observations:
‘Whether we use a clan estate model, or the Western Desert model, or the language group model of Rumsey, or the somewhat incomplete and problematic model proposed by Dr Palmer, the community of Native Title holders turns out the be the same – everyone Yawuru is included in it.
…
In terms of the clan model, it is also so on the anthropological grounds that are specified above; namely, that the clan estate is not exclusively owned by those with patrifilial connection to it. Other kin have secondary rights that the patrifiliates may not gainsay. Those with an interest in a patriclan estate include kin not born to the estate by patrifiliation.
The territories of language groups are entities because people share in the same Dreaming tracks. All the members of a language group have an interest in the proper management of each and every part of the country as mismanagement may elicit a response from offended Dreamings and everyone will then suffer.
The existence of this generalised interest does not cancel or interfere with the specific work and rights of the custodians of particular places.’
351 After becoming aware of the State of Western Australia’s evidence in relation to Worms and, in particular, the evidence relating to totems, rai and camping places of named clans, Sansom gave notice of a change in the earlier views he expressed in his written reports concerning clan estates. Sansom’s change of view was that he was now satisfied that the clan estate model he discussed in his report was ‘reliably established’, rather than merely probable.
352 Van Gent’s conclusions, which were relevant to the change of view, on the recorded ethnographic data of Worms, were stated by her to be as follows:
‘…I consider that Worms recorded ethnographic data which documents the spiritual connection between Yaoro people and their country. This link is prominent in his discussion of totemic identities. Worms provides evidence for the existence of personal totems that were inherited in the patrilineal line and located in the father’s country, as his Yaoro informant Raphael D’olagora explained it so aptly to Worms.
To find out the totem of a person, one asks “What banmin you got?” Banmin is the totem, the area where the man was born. Raphael’s banmin is pinden (Stingray). His “country” is Walderi-nari, not far from Edgar Station, approximately 35 [km] east of Broome. If blacks want to catch stingrays in his country, they come first to Raphael and ask him to help them to catch stingrays. “He dreams (bugari) about the place where stingrays are”, and leads them to the coast where they can be killed. He, Raphael, is allowed to eat only a little bit from it. The rest is for the others. All of his ancestors in the male line belong to pinden, that is to the same totem of the stingray. That means this is connected to the totemic centres of the horde-country. (Notebook, p. 17)
Worms also acknowledges the existence of clan specific totems and clan specific country for the Yaoro (Worms 1940, p. 231, footnote 2):
The Yaoro tribe, whose country extends approximately 30 miles from Broome south west along the coast, has 4 clans:
- The Walman clan with the golebel or turtle totem. They have six camping places. The main camping place is called Manalagon, circa 8 miles east of Broome.
- The D’olbai clan with the bindah – or stingray totem. They have 14 camping places. The main camping place is called Yalanbanan, a hill close to Thangoo or Edgar station.
- The Leregen clan with the garabolo or white kangaroo totem. They have 13 camping places. The main camping place is called Rambanale, that is the area in Broome where today houses of the company “Streeter and Male” are built. It means literally “yams” (rambag) and “swamp” (nale).[…] The Leregen have several totems, because they are in contact with eastern tribes.
- The Menere, with the barambara or parrotfish totem. They have six camping places. The main camping place is called Godelragal. Today the movie theatre of Broome is erected there.
And finally, Worms gives examples of the totemic ancestor’s traces on the landscape itself. For example, for Ganen: “A short stretch of land on the south bank of the inner Roebuck Bay, opposite Broome. It belongs to the Yaoro tribe, Walmandyano local clan with the turtle (golebel) totem. A big oval stone on the beach represents this local totem.” (Worms, 1944, no. 32) or for the so called Dog Stone (Yelangrainaman), “a group of overgrown boulders in the bush a few miles north-west of Broome” that is the location of the totems of young dogs. (Worms, 1944, no. 49).
Worms shows that rights, interests and duties to the land were also taught during initiation ceremonies. In his discussion of Yaoro initiation ceremonies, Worms points out that during the second degree of the initiation, a boy is instructed by four old men from different tribes in the law, wamba godyara, the borders of tribal countries, the location of totemic places and the hunting and fishing grounds. (Worms, 1938, p. 167)
Worms also attempts to link myths with the local geography. In his 1940 publication on myths in the Kimberley, he provides numerous references to clarify the exact geographical position of the localities mentioned in the narratives.
Worms gives also the location of an important Yaoro ceremonial ground as “on a cleared patch in the bush close to Broome.” (Worms, 1942, p. 224)
I have come to the conclusion that although Worms was not an academically trained anthropologist and his ethnographic work does not show the systematic and critical approach of contemporary anthropology, he was nevertheless able to clearly identify individual groups and their territorial affiliations. Most significantly, this included names of four Yaoro clans, their camping grounds and their totemic identities.’
353 Worms recorded the camping grounds of each of the clans. Although he gave little information as to the interaction between the camping grounds, he does give such information in respect of the different tribes and, in particular, in relation to their adjoining borders. Also, while the sites Worms has described as ‘Walman sites’ fall largely within the Walman Yawuru claim area, the area also has camps of other clans (Minyirr and Djulbayi) located in it. Van Gent said she could find no ‘hints’ in Worms’ material concerning who holds clan country under Yawuru tribal law. The lack of specificity on that issue may be explained on the basis that, although Worm’s ethnographic data records significant information, he did so as a missionary and linguist, rather than as a British trained anthropologist for whom social organisation would have been a focus. I do not accept that the evidence in relation to Worms’ records and reports establishes a clan estate model at sovereignty.
‘If this submission were correct then its effect would be that the right under Yolngu tradition and custom of spouses to enter onto the land of the relevant clan could not be reflected in a determination made under the NTA. Indeed, presumably the “native title holders” could rely upon the determination to seek damages from a spouse for trespass in seeking to exercise the rights that he or she possessed under Yolngu law. For my part I think it would be surprising if Parliament had legislated to achieve that result.
Of course it has not done so. The problem with the Commonwealth submission is that it treats comments in the cases about what is a factual inquiry as reflecting some legal test. It is probably true to say that the connection between the Aboriginal group and its country in accordance with Aboriginal tradition and custom is ordinarily a “spiritual” connection. It is also true that that connection is usually reflected in the physical occupation of the relevant land. This does not mean, however, that every right or interest enjoyed by every Aboriginal has to have a “spiritual” aspect to it. “Cultural” and “social” connections may also be sufficient: see Yanner at 373[38] where the majority comment that “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”. Nor does it mean that every right must be reflected in the physical occupation and use of the land. In this case there is no doubt that the relevant spouses have a “connection” with the land – most of them live on it. Whether or not the right or interest is a “spiritual” one is not to the point. As the Commonwealth accepted, the right or interest is one enjoyed under the traditions and customs of the Yolngu people. That, combined with the physical and social connection that the spouses undoubtedly have, is sufficient to meet the requirements of the statutory test.’
355 Further, the focus of s 223(1) of the NTA is on the rights and interests possessed under the traditional laws and customs of the relevant community or claim group. I have not accepted that the ‘oral history’ evidence of the Walman Yawuru witnesses establishes that a rule of trespass has ever applied to, or that permission was ever required to enter upon, the Walman Yawuru claim area under the traditional laws and customs of the Yawuru community. Indeed, I did not accept that the evidence of the Walman Yawuru witnesses established that Walman Yawuru clan members possessed native title rights and interests under those traditional laws and customs in their capacity as clan members. However, that conclusion was subject to the anthropological evidence that was said to support the existence of such rights and interests that were said to be exclusive rights and interests at sovereignty. I accept that the anthropological evidence might justify such a finding in some parts of Australia. However, I am not satisfied that such a finding is warranted in respect of the Walman Yawuru or the Yawuru claim areas. Understandably, the anthropological view in support of the patriclan estate model appears to be based on a general view about land ownership or landholding in certain traditional indigenous societies, rather than on a specific analysis of the native title rights and interests possessed under the traditional laws and customs that confer such rights and interests in a particular society. It is the latter, rather than the former, that is the subject matter that is to be considered under the NTA.
357 Accordingly, for the above reasons, I do not accept that the exclusive native title rights and interests claimed by the Walman Yawuru claimants were held by clan members at sovereignty. It does not follow from that conclusion that the Walman Yawuru clan members do not have any native title rights and interests in their clan areas in their capacity as clan members. Rather, the conclusion has the consequence that any such rights and interests are not the exclusive rights and interests they claim to possess because I am not satisfied that such rights and interests were possessed under the relevant traditional laws and customs at sovereignty. I also do not accept that the evidence establishes that such rights and interests are possessed under any subsequent evolution of those traditional laws and customs. Of course, these conclusions are limited to any rights and interests claimed by the Walman Yawuru clan members as such, and are not concerned with any native title rights and interests those members may possess as members of the Yawuru community.
358 It remains to consider the anthropological evidence as to how the traditional laws and customs have evolved since sovereignty. Although the Yawuru claimants disputed the patriclan estate theory at sovereignty, their alternative position was that, whatever might have been the position at sovereignty concerning the primary/secondary rights dichotomy, any distinction between the two traditional levels of rights disappeared with the evolution of the Yawuru community into its ambilineal form. The evolution was said to be an example of the traditional ‘contingency provisions’, of which Sansom spoke, being at work. In the course of his written and oral evidence, Sansom accepted that, under traditional law and custom, a clan ownership system or structure may evolve into a language group ownership system or structure.
359 Of course, there could be little dispute that, even if a patrilineal system existed at sovereignty, it was unable to the survive the progressive colonisation and urbanisation of the Kimberley region. In that regard, Mardiros stated:
‘A few comments need to be made about general principles of kinship reckoning in Aboriginal Australia. As Hiatt (1982) points out, traditional patrilineal descent principles are no longer strictly applicable in much of Aboriginal Australia. Because of depopulation, disruption and other factors affecting traditional estate groups, principles of affiliation are more commonly cognatic (that is, tracing descent through male and female links) rather than unilineal. The Yawuru elders consulted in the preparation of this report trace their affiliation on such a cognatic basis.’ (D Mardiros, ‘Report Regarding Crocodile Farm’, Yawuru Aboriginal Corporation, 1992, p 10)
360 Sansom recognised these influences on traditional life (see [289]-[291]). Ultimately, his requirement was that any evolution must ‘be shown to be traditional with a link to the traditional formation’. However, Sansom dealt with that very issue in his interim report where he, relevantly, expressed his ‘Conclusions and Issues for Further Consideration’ as follows:
‘1. … classic Yawuru patterns of landholding were probably based on the definition of “horde countries” or patriclan estates.
…
3. Ambilineal (or cognatic) reckoning of kinship together with the conceptualisation of Yawuru lands as constituting a single “language country” are, in my view, related developments that are products of an (unconscious) evolutionary process whereby a new and flexible system grew out of classic landholding arrangements based on the division of country into patriclan estates. [The alternative possibility, namely, that Yawuru tenure is a version of Western Desert tenure, is rejected in (13) below.]
4. Evolution proceeded in a manner that I recognise as a more widespread process whereby the contingency provisions of a classic system are joined together with the normal rules for recruitment of persons to groups and assertion of connection with land to yield:
[i] an ambilineal (or cognatic) system of kinship and
[ii] a system of land tenure in which the internal boundaries dividing sub-divisions of land within a “language country” tend to fall away (often to the degree that sub-divisions are wholly eliminated and become [as Hosakowa says] “defunct”).
5. Processes of evolution referred to in (3) and (4) above may or may not have also become germane to developments among “Karadieri” people associated with the coastal region South of Broome.
6. However, there is a general trend towards the emergence of cognatic systems of kinship in all regions of Aboriginal Australia. With increasing urbanisation, this trend accelerates.
7. It is to be expected that the kinship of those Karadieri people whose traditional country lies to the South of Broome but who are now largely urban dwellers, will “go cognatic”.
8. Processes of evolution referred to in (4), (5) and (6) above, are processes of the evolution of customs observed and traditions acknowledged by people who, through the generations, have maintained connection with the “language countries” of their forebears. Further, (as explained in the text of this report) the evolutionary processes rely on the further elaboration of possibilities that (as provisions for contingencies) were always inherent in traditional laws and customs as these were enunciated and put into practise in classic times.
9. On the basis of the published evidence (I have not read Elkin’s field notes), I accept Glowczewski’s repeated contention that there is the possibility that Elkin only collected indicative rather than definitive data from Yawuru people and then merely “extended his Karajari model” to the Yawuru. Therefore one should neither rely on Elkin to establish the nature of Yawuru kinship nor use his work to derive the rules that govern Yawuru landholding.
…
14. If there has been progressive evolution of traditions and customs as suggested above, then all present arrangements for coastal tenure derive from a classic formation the patrilineal emphasis of which has tended to disappear as the contingency provisions of the classic system have been more and more regularly applied with the progress of the years.
…
16. The Piddingtons demonstrated that there had always been distinct inland and coastal systems contained within Karadieri country, the inland system contrasting with the coastal in that the [inland] system had no law of trespass and seems, furthermore, to have been characterised in general by those features of flexibility that (since Berndt’s essay of 1959) we have come to attribute to the system characteristic of “the Western Desert Bloc”.
17. The division between the Nadja [inland] and Nagu [coastal] groupings of the Karajeri may have disappeared…’ [emphasis in original]
‘MR BELL: Paragraph 6 refers to the:
“…emergence of cognatic systems of kinship in all regions of Australia.”
Does it not?
PROF SANSOM: Yes.
MR BELL: Paragraph 8 says:
“Processes of evolution referred to in 4, 5, and 6 above are processes of evolution of customs observed and traditions acknowledged by people who through the generations have maintained connection with the language country of their forebears. Further, as explained in the text of this report, the evolutionary processes rely on the further elaborations of possibilities as provisions for contingencies were always inherent in traditional laws and customs as these were enunciated and put into practice in current times – in classic times.”
Now, you’ve already indicated to the court that you maintain the view expressed in that paragraph. That seems to me to say, in black and white, that the process that you have observed among the Yawuru as described in – relevantly, in 3, 4, and 5, is traditional. Is that not so?
PROF SANSOM: No.
MR BELL: Why is that not so? Why does 8 not mean that?
PROF SANSOM: There’s been a certain continuity with tradition, but if you transform the system because of a contact – a culture contact situation, you don’t have, in totality a traditional system as you had in the past.
MR BELL: Undoubtedly, that’s true. But that’s not what paragraph 8 says, is it?
PROF SANSOM: What paragraph 8 says is that the people have maintained connection with the language countries of their forebears.
MR BELL: Yes.
PROF SANSOM: And that’s what I said at the time.
MR BELL: Well, you say a lot more than that. I’m not going to read it again, Professor Sansom.
PROF SANSOM: Mm. That - - -
MR BELL: Have you, in fact, changed your view?
PROF SANSOM: I haven’t changed my view.
MR BELL: Let’s go through it - - -
HIS HONOUR: Professor, maybe the stumbling block lies in the second sentence. As I understand the second sentence of paragraph 8, what you seem to be suggesting is that the traditional processes of Aboriginal society themselves contain provisions for contingencies. And you seem to be suggesting that the evolution which you’ve described in the first sentence can be regarded as one of the kind of contingencies that were inherent in traditional laws and customs. That’s what you seem to be saying. Is that right or wrong?
PROF SANSOM: That is correct. As I said, it’s further elaboration. And so, what you’re dealing with is very rapid and unprecedented change.
MR BELL: Well, no - - -
HIS HONOUR: Yes, go on.
MR BELL: I’m sorry.
No doubt, Professor, I’ve already conceded that, but what I’m putting to you is that that’s not what you advert to in these conclusions. What you advert to is the way in which traditional societies evolve in response to change by reference to inherent mechanisms, traditional in form. And what you say in paragraphs 3, 4, and 8 is, in effect, that Yawuru social organisation now is the product of that kind of evolution.
PROF SANSOM: I say that, yes.
MR BELL: You do say that.
PROF SANSOM: Yes.’
6. Conclusions
1. Whether the Yawuru community is a recognisable body of persons united in and by traditional laws and customs which, since sovereignty, have constituted the normative system under which the native title rights and interests in issue are being claimed?
368 The additional findings I have made in relation to the anthropological evidence concerning ‘the law’ (see [263]-[266]), the role of rai (see [272]-[274]), the connection between language and tribal boundaries (see [280]-[281]) and the evolution of the traditional Yawuru community at sovereignty to its present form, both corroborate and confirm the findings set out in [366]-[367], insofar as those findings were made on the basis of the evidence of the Yawuru claimants’ witnesses. Of course, in a number of the findings, I observed that the present form and practice of the traditional laws and customs has changed in significant respects from the form and practice of those laws and customs at sovereignty. However, I am satisfied that the changes are of a kind that would fall within ‘the contingency provisions’ referred to in Sansom’s evidence (see [264]-[266] and [289]-[291]). Those provisions are premised on the undoubted fact that traditional laws and customs are not fixed and unchanging. Rather, they evolve over time in response to new or changing social and economic exigencies to which all societies adapt as their social and historical contexts change. While such changes can have the consequence that the adaptation results in the laws and customs no longer being traditional laws and customs, as is apparent from my findings I am satisfied that the changes to the traditional laws and customs of the Yawuru community are of a kind contemplated by those laws and customs and that those changes have not been such as to result in those laws and customs no longer being properly characterised as ‘traditional’. More specifically, the changes or adaptations are not of a kind that would result in it being able to be said that the native title rights and interests asserted are not possessed under the traditional laws and customs acknowledged and observed by the Yawuru community (see the first de Rose decision at 381 [174]).
369 Further, the genealogies also support the inference invited by the Yawuru claimants to be drawn of continuity of the Yawuru community that existed at the time of sovereignty through to the present time (see [177]-[181]). Having regard to all of the evidence I am satisfied that the Yawuru community has continued to be in existence throughout that period. On the basis of the above findings I am also satisfied that, allowing for the evolution of traditional laws and customs, the Yawuru community at the time of sovereignty acknowledged and observed a body of traditional laws and customs which have normative content and which have continued in existence to the present time. Those laws and customs have plainly been transmitted from generation to generation, find their origins in the pre-sovereignty norms and, notwithstanding their evolution over time, have had a continuous existence and vitality since sovereignty (see the first de Rose decision at 378 [165]). Accordingly, the first question is to be answered in the affirmative.
2. Whether, under the traditional laws and customs acknowledged and observed by the Yawuru community, native title rights and interests in relation to the respective claim areas are possessed by:
(a) the Yawuru community; or
(b) the Walman Yawuru clan;
and, if so, whether the Yawuru community or the Walman Yawuru clan (as the case may be), by those laws and customs, has a connection with the claim area claimed by that community or group?
371 It is also significant that I have not accepted the evidence of the Walman Yawuru witnesses in support of a clan-based title (see [244]-[248]). I also have not accepted O’Connor’s evidence in support of such a title, insofar as it is based on the claims made to him by Walman Yawuru clan members. Further, I have not accepted that O’Connor’s or Sansom’s evidence about the patriclan estate model, being the model articulated by Professor Stanner and Elkin, establishes that native title rights and interests that accord with that model were possessed by patriclan members in the respective claim areas at or since sovereignty (see [354]-[357] and [362]-[3643]).
372 Of course, it does not necessarily follow from those findings that clan members do not have some non-exclusive native title rights and interests in their capacity as clan members. In that regard, I have accepted that it was likely that at sovereignty members of a clan, and others, had a special attachment to, and special responsibilities for, areas or sites with which the clan was associated (see [356]). A problem confronting the Walman Yawuru claim is that the evidence has not enabled me to be satisfied that at sovereignty those attachments and responsibilities resulted in those persons having native title ‘rights or interests’ in any specific site or area in their capacity as clan members, rather than in their capacity as members of the Yawuru community. More specifically, and having regard to the definition of native title ‘rights’ and ‘interests’, I am not satisfied that the evidence establishes that, by the traditional laws and customs of the Yawuru community, those attachments or responsibilities at sovereignty were such as to constitute a ‘right’ in respect of the Walman Yawuru claim area (or part thereof) or an ‘interest’, as defined in s 253 of the NTA, held by any clan members in that area (or part thereof). The main difficulty in that regard is that, although it is possible that clan members might have held such a right or interest at sovereignty in parts of the Yawuru claim area, the evidence of the Walman Yawuru witnesses and the anthropological evidence upon which the Walman Yawuru claimants have relied has not enabled me to determine the content of any traditional laws and customs which, on the balance of probabilities, might have given rise to rights and interests being possessed by Walman Yawuru clan members in the Walman Yawuru claim area (or part thereof) at sovereignty. In any event, the preferable view is that at sovereignty native title rights and interests throughout the Yawuru claim area were only possessed by members of the Yawuru community. As explained above, the ‘oral history’ evidence relied upon by the Yawuru claimants, which I have accepted, supports that view, as do the findings I made in relation to the corroborating anthropological evidence (see, for example, [370]).
373 While I accept that there may be some uncertainty and doubt as to the precise situation at sovereignty, my findings clearly establish that there is not any doubt as to the present situation. By the traditional laws and customs presently being acknowledged and observed by the Yawuru community:
(a) the only native title rights and interests possessed in relation to the respective claim areas are those possessed by members of the Yawuru community; and
(b) members of the clans constituting the Yawuru community, including members of the Walman Yawuru clan, do not possess native title rights and interests in relation to the Walman Yawuru claim area or any part thereof in their capacity as clan members.
374 The evolution, over time, in accordance with traditional law and custom, of a cognatic and ambilineal system of descent in the Yawuru community (including in the Walman Yawuru clan), necessarily brought to an end any patrilineal system of social organisation or any similar system. Insofar as the Walman Yawuru claimants contend that they observe a matrilineal system, I have not accepted that that system has existed or exists under the traditional laws and customs of the Yawuru community or under any other traditional system allegedly observed by members of the Walman Yawuru clan (see [294]-[297]). I also do not accept that they observe such a system (see [293]). The evolution to a traditional cognatic or ambilineal system has resulted in any traditional laws and customs, which once might have given rise to native title rights and interests being possessed by clan members (at any time prior to colonial contact including prior to sovereignty), having ceased to form part of the traditional laws and customs that are presently acknowledged or observed by the Yawuru community. More specifically, the traditional laws and customs relating to the cognatic or ambilineal system of social organisation of the Yawuru community define who is a member of that community and are not concerned with defining who is a member of any clan of that community. Thus, under that system, any claim by a clan member to native title rights and interests became extremely difficult to formulate and establish.
375 Insofar as clan members may have any special attachment to a specific area or site that has been, or is continuing to be, acknowledged by them or other Yawuru persons, that acknowledgement is a courtesy or respect, but the attachment or responsibility is not such as to constitute or give rise to a native title right or interest, as defined in ss 223(1) and 253 of the NTA. I am satisfied that any such attachment falls short of giving rise to any native title right or interest being possessed by a clan member in that capacity under presently observed traditional laws and customs in respect of any particular area of land or waters with which the clan has been historically associated. In the result, I am not satisfied that the evidence establishes that, under the traditional laws and customs acknowledged and observed by the Yawuru community, any of the rights or interests claimed by the Walman Yawuru claimants are possessed by them as members of the Walman Yawuru clan.
376 That leaves remaining the issue of connection under s 223(1)(b) of the NTA. As explained earlier in these reasons, there is no simple dichotomy between traditional laws and customs that are connected with land and waters and those that are not. Nonetheless, it is clear from the above findings that, by almost all of the laws and customs acknowledged and observed by the members of the Yawuru community, the members of that community have the requisite spiritual, cultural and social connection to land and waters in the Yawuru claim area. I need go no further than that finding at this stage as I am not yet determining the precise content of the rights and interests possessed under those traditional laws and customs. These findings are sufficient to establish the essential link between the laws and customs being acknowledged and observed by the Yawuru community and the Yawuru claim area. Accordingly, the Yawuru community, by those laws and customs, has the connection required by s 223(1)(b) of the NTA to land and waters that are situated in the Yawuru claim area. The same findings lead me to conclude that, by those traditional laws and customs, members of the Walman Yawuru clan do not have such a connection with the Walman Yawuru claim area in their capacity as members of the clan.
3. Whether the rights and interests possessed are:
(i) the communal native title rights and interest of the kind claimed by the Yawuru claimants; or
(ii) the group native title rights and interests of the kind claimed by the Walman Yawuru claimants?
It follows from the above conclusions that the native title rights and interests possessed in the Yawuru claim area:
(a) are communal native title rights and interests possessed by members of the Yawuru community; and
(b) are not the group native title rights and interest claimed to be possessed by members of the Walman Yawuru clan members.
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I certify that the preceding three hundred and seventy five (375) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. |
Associate:
Dated: 29 July 2005
Appearances in relation to the hearing concerning the establishment of native title:
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Counsel for the Applicants: |
Mr K Bell QC with Mr G Irving |
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Solicitor for the Applicants: |
Mr I Irving of the Kimberley Land Council |
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Counsel for the State of Western Australia: |
Ms R Webb QC with Mr B King |
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Solicitors for the State of Western Australia: |
Crown Solicitor for the State of Western Australia |
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Counsel for the Commonwealth of Australia: |
Mr P Quinlan with Mr A Rorrison |
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Solicitors for the Commonwealth of Australia: |
Australian Government Solicitors |
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Counsel for the Western Australian Fishing Industry Council (Inc): |
Mr M McKenna |
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Solicitors for the Western Australian Fishing Industry Council (Inc): |
Hunt and Humphrey |
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Counsel for the Walman Yawuru Respondents: |
Mr I Viner QC |
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Appearing as a representative of the Walman Yawuru Respondents: |
Ms R Hanigan |
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Dates of hearing in relation to the establishment of native title: |
12, 13, 14, 15, 16, 17, 18, 19, 20, 21 May 2003, 3, 4, 5, 6, 9, 10, 11, 12, 13 June 2003, 27, 28, 29, 30, 31 October 2003, 3, 4, 5, 6, 7, 10, 11, 12, 13, 14 November 2003 and 14, 15, 16, 17, 18 June 2004 |
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Date of judgment in relation to the establishment of native title: |
29 July 2005 |
SCHEDULE
APPLICANTS:
CORPUS, Michael
DJIAGWEEN, Cecilia
DJIAGWEEN, Francis
DODSON, Patrick
EDGAR, Elsie
EDGAR, Felix
HUNTER, Richard
ROE, Joseph
ROE, Joseph ‘Nipper’
ROE, Teresa
SADDLER, Thelma
SEBASTIAN, Frank
RESPONDENTS:
01 Government Interests – State of Western Australia
Aboriginal Affairs Department
Aboriginal Lands Trust
Commissioner of Main Roads
Electricity Corporation
Minister for Aboriginal Affairs
Minister for Energy
Minister for Fisheries
Minister for Lands
Minister for Mines
Minister for Transport
Minister for Water Resources
State of Western Australia
02 Government Interests – Commonwealth of Australia
Airservices Australia
02A Government Interests – Commonwealth of Australia
Commonwealth of Australia
02A Government Interests – Local Government
Shire of Broome
04 Indigenous Interests
Bilgungurr Aboriginal Corporation
Kimberley Land Council
MATSUMOTO, Peter
ROBINSON, Margaret Mary
ROE, Edward Leonard
05 Mining Interests
CONNOLLY, Peter Scott
COUNTY, Brian Stanley
Maple Oil Exploration NL (Administrators Appointed) (Receivers and Managers Appointed)
06 Pastoral Interests
CROOK, Reginald D
Thangoo Pty Ltd (Thangoo Station)
07 Telecommunications Industry Interests
Telstra Corporation Limited
08 Tourism Interests
Broome Crocodile Park
Cable Beach Jet Boat Charter
Dampier Creek Boat Tours
Kimberley Birdwatching
The Kimberley Connection Pty Ltd
09 Fishing Interests
Australian Ocean Exporters Pty Ltd
BLATCHFORD, Kevin
Broometime Charters
CANNEY, Pam
FRASER, Alan John
IGNOTI, Les
IGNOTI, Peter
IGNOTI, Russell
Kimberley Fish and Ice Supplies
Lenden Nominees Pty Ltd
Leveque Wilderness Fishing Charters
LEW, Ian
LITTLETON, Kyran R
MOORE, Gary
NEWTON, Ross
Pearl Coast Charters
Pearl Sea Coastal Cruises
WEIR, Neville
09A Fishing Interests
Western Australian Fishing Industry Council (Inc)
10 Pearling Interests
Australian Sea Pearls Pty Ltd
Broome Pearls Pty Ltd
Cygnet Bay Pearls
Paspaley Pearling Company Pty Ltd
Pearls Pty Ltd
Roebuck Pearl Producers Pty Ltd
Willie Creek Pearl Farm and Broome Coachlines
11 Petroleum Interests
E-Com Multi Limited
12 Non Party (For Information Only)
National Native Title Tribunal
