Branson, North and Mansfield JJ
This decision involves two competing claims to native title over land and waters around Broome in Western Australia. The primary judge Merkel J had held that the Yawuru claimants possessed native title rights and interests over the whole of the claim area in Rubibi Community v State of Western Australia (No 6) [2006] FCA 82.
In this appeal the State argued that the northern portion of the Yawuru claim area was traditionally held by the Djugan people who were distinct from the Yawuru people. The state also argued that because they have a cognitive descent system, they no longer had an interest in the claim area under traditional law and custom. The Walman Yawuru also raised two issues around the adoption and incorporation into the Yawuru community, and the extent of their own native title rights and interests.
Native title rights of the Yawuru community
The primary judge found that the Djugan people were a subset or subgroup of the Yawuru community at sovereignty and consequently the Yawuru native title was found to be communal. The State contends that the primary judge failed to identify the relevant native title holding "society" as required by Yorta Yorta. As a consequence, the State submits that the primary judge erred in not finding that the Djugan and Yawuru form two discrete "societies".
The Full Court found that, based on the evidence, the Djugan people were regarded as as part of the contemporary Yawuru community. The Full Court affirmed the primary judge's observation "that members of a 'community' may possess communal native title rights and interests notwithstanding that they are 'intramurally allocated' to different groups or subsets of the community."
Descent system of the Yawuru community
The second issue is whether the primary judge was correct in finding that at sovereignty, a principle of choice existed to allow fir an evolution of traditional laws and customs to take account of cognatic or ambilineal descent. The Full Court found that the primary judge was correct in concluding that the existence of an ambilineal or cognatic descent system did not reflect a change from the traditional laws and customs at sovereignty. Further, that the rights and interests now claimed through an ambilineal descent system are possessed by the Yawuru people under traditional laws and customs.
Adoption/incorporation into the Yawuru community
The primary judge included in the native title determination that native title holders include adult non-Yawuru persons having high cultural knowledge and responsibilities. The Full Court found that the relatively low frequency with which this provision may be invoked does not indicate that it is not part of traditional laws and customs. The determination was found to accurately reflect the evidence and satisfy the requirements of s 225 of the Native Title Act 1993 (Cth).
Walman Yawuru native title rights and interests
The Walman Yawuru contend that they have native title rights and interests in their capacity as clan members, and that these rights should either constitute non-exclusive rights in the area, or that the rule of trespass and permissions should give rise to a native title right and interest held by the Walman Yawuru in respect of their traditional lands and waters.
The Full Court found that these claims cannot succeed because of the primary judge's findings in relation to the nature of the Walman Yawuru's relationship to parts of the claim area, which as above cannot be appealed. That relationship, on the findings, did not amount to an interest in relation to the determination area. There is therefore no need to explore whether the concept of "other interests" in s 225 (c) NTA can accommodate a claimed interest of a clan of a native title claim group which has established native title rights and interests, particularly where the recognition of that other interest may derogate from the native title rights and interests recognised.
The Full Court dismissed the each of the above four appeals of the State and the Walman Yawuru.
Extinguishment
There were issues over a number of areas within the claim area in relation to extinguishment and occupation under s 47B NTA. The Full Court found that s 47B Native Title Act 1993 (Cth) could be applied to the area of Broome and found that s 47B was capable of applying to areas within the proclaimed township. The Full Court found various errors in the primary judge's findings in relation to a number of these areas.