Case: Rubibi Community v State of Western Australia (No 6) [2006] FCA 82
Outcome: referred to
In some native title determination applications, the claimants are in dispute among themselves as to which of them is entitled to hold native title. See for example Rubibi Community v State of Western Australia (No 6) [2006] FCA 82. 557 Fortunately, no issue of that kind arises in the present case. The claimants are united in asserting an identifiable community entitled to enjoy native title rights and interests in accordance with traditional laws and customs as currently acknowledged and observed. The Northern Territory, supported by AFANT, challenges their claim to be an identifiable community or group. However, it does so not so as to ensure that the correct persons are identified in any determination, as it did in Ward HC, but rather because it maintains that there is no group that meets the requirements of s 223(1). The Northern Territory relies principally upon the evidence of Professor Sansom to make good that contention. 558 When determining who, if anyone, holds native title it is useful to recall the following observation of Brennan J in Mabo (No 2) : "Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person's membership by that person and by the elders or other persons enjoying traditional authority among those people." 559 On one view, this statement of principle suggests that native title can only exist in those who can establish biological descent from the original group in occupation, as at the date of acquisition of sovereignty. However, the statement needs some qualification. There have been instances where native title has been recognised after transference from one group to another, in accordance with traditional laws and customs. It is also possible, as the anthropological evidence in the present case makes clear, for one group to succeed to the estate of another. 560 In any event there is no real dispute in this case as to the ancestral connection between what might be termed "the original native title holders", and the present claimants. In Ward first Full Court, it was said (at [234]) that biological descent need not be patrilineal. Biological descent is plainly established in the present case. The issue that divides the parties is simply whether there has been a fundamental change in the normative system that underlies the acquisition of native title, from a patrilineal descent system to a cognatic descent system, and if so, whether that prevents the present claimants from maintaining a traditional connection with the land, in accordance with traditional laws and customs. I have already indicated why I would resolve that issue in favour of the claimants. 561 The next element that the claimants must establish is the existence of a connection, by the traditional laws and customs acknowledged and observed, with the land or waters claimed. In some cases, the question has arisen as to whether the "connection" of which s 223(1)(b) speaks must be physical, or whether some form of spiritual link will suffice. 562 This issue does not loom large in the present case. The evidence establishes that the claimants occupy the area in and around Timber Creek not randomly, or because they have happened onto it recently, but because their forbears occupied the region generations ago. The land was, and still is, a major part of their economic, cultural and spiritual life. The presence of their ancestors may not have amounted to possession at common law. It seems, on the evidence, to have been, at least in part, nomadic. However, it certainly qualified as "occupancy", in a broad sense, even allowing for the fact that other indigenous groups frequently came onto the land for ceremonial and other purposes. Although traditional connection to land can be lost by forcible removal, the evidence does not suggest that this occurred in or near Timber Creek. 563 In Ward HC, Western Australia submitted that proof of continued use of land or waters was essential to the establishment of "connection with the land or waters". The High Court rejected that contention. The joint judgment observed (at [64]) that s 223(1)(b) is not directed at how indigenous people use or occupy land or waters. Whether there is a relevant connection under traditional law or custom with the land or waters will depend, to some degree, upon the content of traditional law and custom. It will also depend upon what is meant by connection "by" those laws and customs. 564 As is apparent, I am satisfied that the claimants have established that they possess native title rights and interests in the claim area, as defined in s 223(1). They have demonstrated that they are a society united in and by their acknowledgment and observance of a body of accepted laws and customs. They have also demonstrated that this body of accepted laws and customs is, in essence, the same body of laws and customs acknowledged and observed by their ancestors, adapted to modern circumstances. 565 The final question to be determined is whether the acknowledgment and observance of those laws and customs has continued substantially uninterrupted by each generation since sovereignty in 1825, and whether the society has continued to exist throughout that period as a body united in and by its acknowledgment and observance of those laws and customs. 566 Native title cases are almost always fact specific. Whatever the position may be in other parts of Australia, the Ngaliwurru and Nungali Peoples who make up the claimants in this case continue to observe the ritual and ceremonial practices of their ancestors in much the same way as they always have. Those ritual and ceremonial practices are largely and inextricably bound up with the land and waters in and around Timber Creek. 567 There are many examples of this. Even putting to one side high order ritual practice, these examples include initiation rites, head wetting ceremonies, protection of sacred and Dreaming sites, traditional methods of hunting, fishing and gathering food, and the ongoing practice of Winan. 568 I am satisfied that, in 1825, the Ngaliwurru and Nungali Peoples were a society united in and by their acknowledgment and observance of accepted laws and customs. That society survived early European settlement, and continued into and throughout the 20 th Century. The claimants are the direct descendents of indigenous persons who made up that society. 569 I am further satisfied that the claimants are the direct descendents of indigenous persons who maintained a connection to the land and waters in and around Timber Creek, not just since the time of initial European contact, but at least as far back as 1825. 570 It is hardly surprising that there is no direct evidence pointing to the claimants' ancestors having occupied and used this land prior to sovereignty. Given that the first significant European contact did not occur until 1839, and that the area was not settled until the 1880s, it is scarcely likely that there would be written records relating to the indigenous inhabitants of the region that reflect conditions prior to 1825.