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Editors --- "Rubibi Community v Western Australia (No 5) [2005] FCA 1025 - Case Summary" [2005] AUIndigLawRpr 44; (2005) 9(3) Australian Indigenous Law Reporter 48

RUBIBI COMMUNITY V WESTERN AUSTRALIA (NO 5)

Federal Court (Merkel J)

29 July 2005

[2005] FCA 1025

Competing claims for native title rights and interests — whether native title rights and interests are held by members of the claimant community or members of a competing claimant group who comprise one of the clans which forms part of that community

Facts:

The Walman Yawuru is a clan within the Yawuru community situated in and around Broome, Western Australia.

The Yawuru community and the Walman Yawuru clan claim competing native title rights and interests in the claim area. In particular, the Walman Yawuru oppose the claims of the Yawuru claimants on the basis that native title within the Yawuru claim area is clan based, rather than communal.

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, including the Walman Yawuru. That claim was supported by expert anthropoligical evidence submitted by an anthropologist for the Yawuru claimants.

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 another anthropologist.

Held:

1. Where the evidence establishes that the traditional laws and customs relied upon by a clan are derivative and indistinguishable from the traditional laws and customs of the community to which the clan belongs, the native title rights claimed by the clan members will become a sub-set of the wider community rights, the traditional laws and customs of which determine who possesses rights and interests in particular sites and areas: [18].

2. Where it is found that native title is a communal native title, rather than a clan native title, any claim for clan native title rights and interests must be refused: [8].

3. While there may be instances where clan members have a special attachment to a specific area or site, for native title rights to exist, that attachment must be such as to constitute or give rise to a native title right or interest as defined in ss 223(1), 253 of the Native Title Act 1993 (Cth): [375].

4. Traditional laws, far from being fixed and unchanging, are said to evolve over time in response to new or changing social and economic exigencies: [368].

Case Extract:

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30. … [I]n 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?

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366. I am satisfied that the present Yawuru community, as generally defined in the genealogies, is a recognisable body of persons who are likely to be descendants, on an ambilineal or cognatic basis, of members of the Yawuru community at the time of colonial contact, and therefore at the time of sovereignty … As I have concluded that a definition of the Yawuru community on the basis of ambilineal or cognatic descent is in accordance with the traditional laws and customs of the Yawuru community … it follows that the present Yawuru community is not a new community or society or one whose members are not descended in accordance with traditional law and custom from the members of the Yawuru community at sovereignty.

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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 … 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 [De Rose v South Australia [2003] FCAFC 286] at 378 [165]). Accordingly, the first question [posed above at [30]] is to be answered in the affirmative. …

370. The findings referred to in my answer to the first question afford strong support for the conclusion at which I have arrived that, under the traditional laws and customs acknowledged and observed by the Yawuru community, native title rights and interests in the respective claim areas were, and still are, possessed only by and on behalf of members of the Yawuru community, and not by or on behalf of members of any of the clans constituting that community. In particular, the findings ... (and the substantial body of evidence on which those findings are based), point clearly to communal, rather than clan, native title rights and interests. …. The co-incident linguistic, ‘law’ and tribal boundary, which was sourced and laid down by the southern tradition, forms part of the normative system constituted by the traditional laws and customs acknowledged and observed by the Yawuru community at and since sovereignty.

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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 … 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 [Native Title Act 1993 (Cth)], 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 …

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 … I also do not accept that they observe such a system … 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.

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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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