The State of Western Australia v Sebastian

• Jurisdiction: Australia Federal only
• Judgment Date: 02 May 2008
• Neutral Citation: [2008] FCAFC 65
• Court: Full Federal Court (Australia)

THE STATE OF WESTERN AUSTRALIA,

FRANK SEBASTIAN AND OTHERS

(ON BEHALF OF THE RUBIBI PEOPLE)

V

MARGARET ROBINSON, EDWARD ROE AND NUGGET MATSUMOTO

(ON BEHALF OF THE WALMAN YAWURU)

COMMONWEALTH OF AUSTRALIA

THANGOO PTY LTD

TELSTRA CORPORATION LIMITED

WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (INC) and

SHIRE OF BROOME

WAD 137 of 2006

SUMMARY

In accordance with the practice of the Federal Court in certain cases of public interest, the Court has prepared a Summary to accompany the judgment that is to be delivered today. However, it must be emphasised that the Summary forms no part of the judgment. The only authoritative statement of the Court’s reasons is the judgment itself.

This Summary is intended to assist in understanding the principal conclusions reached by the Court, but is necessarily incomplete. The published Reasons for Judgment and this Summary will be available on the internet www.fedcourt.gov.au.

The State of Western Australia v Sebastian [2008] FCAFC 65

There were two competing claims for a determination of native title in respect of land and waters in and around Broome, Western Australia.

The primary judge, Merkel J decided that the Yawuru claimants (the Rubibi people) possessed communal native title rights and interests in the whole of their claim area, and made a determination in their favour in respect of the whole of their claim area, subject to particular areas in the Broome township where native title had been extinguished. His Honour found that the competing claimants, the Walmun Yawuru, who claimed an area within the larger claim area of the Yawuru, were a sub-group of the Yawuru claimants and so did not separately possess native title rights and interests, although they held special attachments to and responsibilities for certain areas or sites within the Yawuru claim area.

On the appeal, the State argued that the northern portion of the Yawuru claim area was traditionally held by the Djugun people who were separate from the Yawuru people. The State also argued that the Yawuru claimants, because they have a cognative descent system, no longer had an interest in relation to the claim area under traditional laws and customs because traditionally they operated under a patrilineal descent system. The Full Court rejected both those contentions. On the basis of the evidence accepted by the trial judge, the Full Court concluded that the findings of the trial judge should be sustained, so the determination of native title rights and interests in favour of the Yawuru claimants will stand.

The Full Court also rejected the appeal of the Walman Yawuru. On the basis of the evidence accepted by the trial judge, the Full Court upheld the findings about the status of the Walmun Yawuru claimants and about the nature and extent of their attachment to and interest in certain sites and areas within the claim area.

There were seven separate issues raised by appeal or cross-appeal covering findings of the trial judge about the extent of extinguishment of native title rights and interests in part of the Yawuru claim area.

Two issues are of general significance. One is whether s 47B of the Native Title Act 1993 (Cth) could be applied to the area of the Broome town site so as to be available to save any native title rights and interests within the Broome town site from being extinguished simply by the proclamation of the township of Broome. The Full Court has affirmed the decision of the trial judge that s 47B was capable of applying to areas within the proclaimed township. Secondly, the Yawuru claimants cross-appealed against the finding that any native title rights and interests in that part of the intertidal zone of the determination area as vested in The Minister for Transport pursuant to s 9 of the Marine and Harbours Act 1981 (WA) were thereby extinguished. The Full Court agreed with the conclusion of the trial judge.

The remaining issues concerning extinguishment concerned findings of fact by the trial judge upon which native title rights and interests were extinguished in certain parts of the Broome town site. The findings have been upheld by the Full Court save for conclusions that Reserve 631 had been validly declared, that native title had been wholly extinguished over the whole of the area reserved for the Broome Cemetery, and that the Yawuru claimants did not occupy areas 2735, 2736 and 2738 at Kennedy Hill when this application was made.

The Full Court has allowed the parties some time to consider its reasons and to propose the form of orders which should be made to give effect to them.

FEDERAL COURT OF AUSTRALIA

The State of Western Australia v Sebastian [2008] FCAFC 65

NATIVE TITLE – two competing claims for determination in respect of land and waters in and around Broome, Western Australia – first instance determination made in favour of Yawuru claimants – appeal and cross appeal from first instance native title determination of single judge

NATIVE TITLE – Yawuru claimants – issues of existence of native title – whether primary judge assumed existence of native title by approval or adoption of a “communal native title” approach – issues of evolution from patrilineal to ambilineal descent – consideration of potential occurrence of succession – consideration of traditional rules of incorporation/adoption

NATIVE TITLE –Walman Yawuru claimants – whether the dismissal of claim was correct on the basis that native title in the determination area is communal – consideration of “special attachments and responsibilities” under ss 223, 253 of the Native Title Act 1993 (Cth) – consideration of non-exclusive and exclusive rights– consideration of issues of succession

NATIVE TITLE – issues of extinguishment – whether valid creation of reserves –whether extinguishment by reservation of land – consideration of rights to determine use and control access to land – public works and rights asserted by the Crown –application of ss 47A, 47B of the Native Title Act 1993 (Cth) – valid vesting of rights under statute

Native Title Act 1993 (Cth)ss 47A, 47B, 68, 211, 223, 225, 228,253, 285

Racial Discrimination Act 1975 (Cth) s 10(1)

Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) ss 4, 7, 12, 23, 12I, 121, 251D

Land Act 1898 (WA) ss 7, 8, 39

Marine and Harbours Act 1981 (WA) ss 8, 9, 10, 12, 22

Cemeteries Act 1897 (WA) ss 10, 18, 22

Land Regulations 1894 (WA) regs 32

Land Regulations 1882 (WA) regs 3, 29, 30, 35, 38

Municipal Corporations Act 1906 (WA) s 212

Public Works Act 1902 (WA)

Waterworks Act 1932 (SA) s 10(1)

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424

Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1

Commissioner of the Australian Federal Police v Oke [2007] FCAFC 94

Commonwealth v Yarmirr (2001) 208 CLR 1

Dale v Moses [2007] FCAFC 82

Daniel v Western Australia (2004) 138 FCR 254

De Rose v South Australia (No 1) (2003) 133 FCR 325

De Rose v South Australia (No 2) (2005) 145 FCR 290

Griffiths v Northern Territory of Australia [2007] FCAFC 178

Gumana v Northern Territory of Australia [2007] FCAFC 23

Hayes v Northern Territory (1999) 97 FCR 32

Kokatha People v State of South Australia [2007] FCA 1057

The Lardil Peoples v State of Queensland [2004] FCA 298

Mabo v Queensland (No 2) (1992) 175 CLR 1

Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422

Moses v State of Western Australia [2007] FCAFC 78

Neowarra v State of Western Australia [2003] FCA 1402

New South Wales v Commonwealth (1975) 135 CLR 337

Northern Territory of Australia v Alyawarr, Kayteye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442

Rubibi Community (No 5) v State of Western Australia [2005] FCA 1025

Rubibi Community v Western Australia (2001) 112 FCR 409

Rubibi Community v State of Western Australia (No 2) (2001) 114 FCR 523

Rubibi Community v State of Western Australia (No 7) [2006] FCA 459

Rubibi Community v Western Australia (No 6) (2006) 226 ALR 676

Sampi v Western Australia (No 2) [2005] FCA 1567

South Australia v Tanner (1989) 166 CLR 161

Sydney Harbour Trust Commissioners v Harriott (1923) 32 CLR 53

Transurban City Link v Allan (1999) 95 FCR 553

Ward v State of Western Australia (1998) 159 ALR 483

State of Western Australia v Ward (2002) 213 CLR 1

Western Australia v Ward (2000) 99 FCR 316

THE STATE OF WESTERN AUSTRALIA v FRANK SEBASTIAN AND OTHERS (ON BEHALF OF THE RUBIBI PEOPLE), MARGARET ROBINSON, EDWARD ROE AND NUGGET MATSUMOTO (ON BEHALF OF THE WALMAN YAWURU), COMMONWEALTH OF AUSTRALIA, THANGOO PTY LTD, TELSTRA CORPORATION LIMITED, WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (INC) AND SHIRE OF BROOME

WAD 137 OF 2006

BRANSON, NORTH AND MANSFIELD JJ

2 MAY 2008

ADELAIDE (VIA VIDEOLINK TO PERTH & MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 137 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

THE STATE OF WESTERN AUSTRALIA Appellant/First Cross-Respondent

AND:

FRANK SEBASTIAN AND OTHERS (ON BEHALF OF THE RUBIBI PEOPLE) First Respondent/First Cross-Appellant MARGARET ROBINSON, EDWARD ROE AND NUGGET MATSUMOTO (ON BEHALF OF THE WALMAN YAWURU) Second Respondent/Second Cross-Appellant COMMONWEALTH OF AUSTRALIA Third Respondent THANGOO PTY LTD Fourth Respondent TELSTRA CORPORATION LIMITED Fifth Respondent WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (INC) Sixth Respondent SHIRE OF BROOME Second Cross-Respondent

JUDGES:	BRANSON, NORTH AND MANSFIELD JJ
DATE OF ORDER:	2 MAY 2008
WHERE MADE:	ADELAIDE (VIA VIDEOLINK TO PERTH & MELBOURNE)

THE COURT ORDERS THAT:

1. The proceeding be stood over to a date to be fixed for the purpose of the making of orders giving effect to these reasons.

2. The parties provide to the Associate of Branson J by 20 May 2008 an agreed minute of the orders to be made and, if agreement has...