Agreements, Treaties and Negotiated Settlements Project

Rubibi Community v State of Western Australia (2001) FCA 1153
Category:	Case Law
Binomial Name:	Federal Court of Australia
Date:	7 November 2001
Sub Category:	Litigated Determination
Place:	Near Broome
State/Country:	Western Australia, Australia
Legal Status:	Registered on the National Native Title Register.
Legal Reference:	Federal Court File no: WAD96/28; Tribunal file no:
Alternative Names:	Rubibi #6 Rubibi Community Native Title Determination
Summary Information:
Rubibi Community v State of Western Australia (2001) FCA 1153 Between: Felix Edgar, Frank Sebastian, Francis Djiagween, Patrick Dodson and Joseph 'Nipper' Roe on behalf of the Rubibi Community and Rosie Charlie on behalf of the Leregon (Langanjun) Clan of the Yawuru Tribe (APPLICANTS) AND The State of Western Australia and others (RESPONDENTS). Judge: Merkel J Determination: Native title exists in the entire determination area.
Detailed Information:
This determination arose from an application for native title lodged with the National Native Title Tribunal in 1998. The Applicants claimed exclusive possession, occupation, use and enjoyment of an Aboriginal law ground for ceremonial and ritual purposes. The main questions for the Court were whether the claimant community had substantially maintained its traditional connection with the law ground in accordance with traditional laws and customs, whether entitlement to exclusive native title rights and interests had been extinguished and what was the appropriate role of the Court in resolving intra-communal disputes concerning native title rights and interests. The first applicants are senior Yawuru Law Men, who brought the claim on behalf of the Rubibi claimant group. The Rubibi claimant group comprises members of the Aboriginal communities variously described as Yawuru, Djugan and Goolarabooloo. The Rubibi applicants adopted the name Rubibi, which is an Aboriginal 'soak' (waterhole) in Broome, and a name generally associated with the Broome Aboriginal community. The Rubibi applicants claimed that the claim area has been used since time immemorial by the members of the Rubibi claimant group and their ancestors 'to conduct sacred rituals and ceremonies and as a repository for sacred objects.' The Rubibi applicants also claimed that they are responsible for the claim area as an Aboriginal law ground under the traditional laws and customs of the Rubibi claimant group. The Rubibi applicants sought that it be determined that the native title in relation to the claim area 'is held by the claim group, being the common law holders [�] who are those Aboriginal people ancestrally connected to the original occupiers of the claim area and who hold in common the body of traditional law and custom governing that area [�]'. Further, that it be determined that the native title held confers upon the claim group 'occupation, use, possession and enjoyment, as against the whole world, of the claim area, 'for ceremonial purposes'.' The Court held that the Rubibi applicants had established that native title exists in relation to the claim area and is held by the claim group who are members of the traditional Yawuru community. The native title held by the group was found to confer upon them the right of occupation, use, possession and enjoyment, as against the whole world, of the claim area, for ceremonial purposes. The nature and extent of the rights was set out as follows: '(i) rights and interests to possess, occupy, use and enjoy the claim area; (ii) the right to make decisions about the use and enjoyment of the claim area; (iii) the right to conduct ceremonies on the claim area, in accordance with traditional law and customs; (iv) the right of access to the claim area for ceremonial purposes; (v) the right to control the access of others to the claim area; (vi) the right to use and enjoy the resources of the claim area for ceremonial purposes; (vii) the right to control the use and enjoyment of others of the resources of the claim area; (viii) the right to hunt and gather for ceremonial purposes; (ix) the right to manufacture ceremonial artefacts, tools and weapons from the resources of the claim area for ceremonial purposes; (x) the right to maintain and protect the claim area, as a sacred ceremonial area under traditional laws and customs; and (xi) the right to maintain, protect and prevent the misuse of the cultural knowledge associated with the claim area.' The native title rights and interests identified do not include rights to any minerals, petroleum or gas - these are wholly owned by the Crown. Nor are rights of possession, occupation, use and enjoyment to the exclusion of all others conferred in respect of any areas in relation to which a previous non-exclusive possession act (as defined in s 23 F of the Native Title Act 1993 (Cth)) (NTA), was done in relation to the area where the act was attributable to the Commonwealth or the State of Western Australia. Finally, Merkel J made several concluding observations about the decision as set out below: 'First, the factual findings and the legal conclusions at which I have arrived have been made in the context of the traditional connection maintained by the Yawuru community with Kunin as an Aboriginal law ground. There are further claims being pursued before me in relation to what is claimed to be traditional Yawuru or Leregon "country". It should be emphasised that the nature of those claims, the issues they raise, the parties and the evidence that I expect will be adduced in support of or in opposition to them will be different to the issues raised, the parties to and evidence adduced in the present claim. Thus, it should not be assumed or expected that any findings or conclusions in the present case can or will be carried over to the claims to "country" which are yet to be determined. [�] Second, the native title established to exist in Kunin epitomises one of the main reasons why native title has been recognised and protected by the common law and under the NTA. The Rubibi applicants have established that prior to, at and since the acquisition of sovereignty, the Yawuru people have substantially maintained their traditional connection to Kunin as an Aboriginal law ground. As a consequence the NTA is able to recognise and protect a key facet of the traditional law and culture of the Yawuru people [�] Third, there has been much misunderstanding and disinformation in the Australian community about native title. Although the evidence in the present case did not produce any new or startling revelations about traditional Aboriginal society, in telling their story the Rubibi applicants have articulated a cogent, rational and historically sound exposition of why a fair and just legal system does not refuse to recognise the unextinguished native title that they have established has existed since prior to European settlement of Australia. In a small but significant way that exposition has the capacity to better enable the Australian community to understand why the common law and the Australian parliament have recognised and protected the native title held by indigenous persons in Australia.' The reasons for the decision handed down in November 2001 are set out in Rubibi Community & Anor v The State of Western Australia & Ors (Includes Corrigendum dated 29 May 2001) [2001] FCA 607 (29 May 2001).