Case: Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 ; (2005) 145 FCR 442
Outcome: applied
In Rubibi Community v The State of Western Australia [2001] FCA 607 (' Rubibi '), which concerned the Yawuru community's claim to the law ground at Kunin, the evidence concerning the Djugan led me to conclude (at [99]) that 'at least in relation to their traditional connection to Kunin, the Djugan people are a subgroup of the Yawuru people'. At the hearing in this proceeding, which related to the establishment of native title in the Yawuru claim area, a considerably greater body of evidence was adduced in relation to the Djugan. An aspect of that evidence was that, unlike the Yawuru who practiced the southern tradition, the Djugan practiced the northern tradition. In the interim reasons I made certain observations (at [55]-[61] and [79]) about the two traditions practiced in the claim area: '55. Two legal traditions, which lay down "the law", are claimed to be applicable in Yawuru country. Each of the traditions involves the creation of the world by mythological creatures or heroes who gave the people their "law", waterholes (soaks or jilas ), "law grounds", songs, "skin sections" and languages. Patrick Dodson outlined the path of the southern tradition in the Yawuru claim area in a restricted exhibit. The southern tradition is "the law" that is generally practiced by the Yawuru, Karajarri, Nyangumarta, Nygina and Mangala people. The northern tradition is generally practiced by the Bardi, Nyul Nyul, Jabirrr Jabirrr and Nyambal people. The southern tradition (southern law) may be referred to in Yawuru country as the Yawuru law. The northern tradition is often called Bardi law. The "law bosses" for the southern tradition in Yawuru country are Felix Edgar, Frank Sebastian (Gajai), Francis Djiagween (Lulga), Joseph "Nipper" Roe and Patrick Dodson. The "law bosses" for the northern tradition in Yawuru country were said to be Joseph Roe, Richard Hunter and Phillip Hunter. 56. The two traditions are kept separate. Joseph Roe said that the laws sit side by side without overlapping because "Bugarrigarra make them like that, we're just following Bugarrigarra." 57. While the Bugarrigarra and many of the basic rituals, customs and laws it prescribes are common to the northern and southern traditions, the two mytho-ritual traditions differ in their origin, being the journeys and undertakings of the mythological creators of the respective traditions. However, support for the claim of the Yawuru claimants that both traditions were observed in the same country is to be found in R Piddington's article, which contains observations about the initiation ceremonies under both traditions in the country of the Karajarri people, which is to the south of the Yawuru claim area. (R Piddington, "Karadjeri Initiation", Oceania , vol 3, no 1, 1932, p 46) 58. Men can go through both northern and southern law. Gajai said "[i]t has always been okay for a man to go through more than one law...The two laws don't mix but they are respected in this country." Patrick Dodson said "[i]t's not a unusual thing for a Yawuru man to go through northern law." Yawuru community members who have been through both laws include Lulga and Patrick Dodson's grandson (by "skin" and nephew by blood), Sooty Pigram. Several men who are now deceased, have also been through both laws, namely Paddy Djiagween, Bandak Bernard, Peter Kajit, Johnny Peters, and Stanley Djiagween, as well as Lulu and Paul Sampi. 59. Paul Sampi, a senior Bardi "law man", described how the northern tradition of "law" travels along two paths. The first path, Ungui , which is the first stage of "law", travels down from Bardi country along the east coast of the Dampier Peninsula from Swan Point to the mouth of the Fitzroy River at Langey Crossing, then west to Garawan and then to Willie Creek. From there, it travels back to the east to Garawan and then north to La Djardarr Bay. The other part, Ululong , the second stage of "law", travels down along the west coast of the Dampier Peninsula from Swan Point through to Wapunu in Karajarri country. Paul's evidence was that, after World War Two, Bardi men, who were living and working in Broome and wanted to be able to practice Bardi law in Yawuru country, asked permission of the Yawuru "law men" to start Ululong at Four Mile. Paul was living in Broome in 1949 and, as he had been through Ungui , was able to go through the second stage of the southern law. He says that "[i]n those days people went through both law[s]." 60. There is also a third tradition, which starts at Bilinnguru (Hidden Valley) in Yawuru country and goes out into the desert. This tradition is like a "song line" and is known as the Wanji or Dingarri . Peter Clancy, a Mangala man who gave evidence about the Wanji , stated that it speaks "Yawuru language in Yawuru country, Karajarri language in Karajarri country, and Mangala language in Mangala country. I know the songs for the Wanji right through." 61. There was some confusion as to how the Yawuru claimants relied upon the northern tradition in making out their case. Ultimately, they accepted that the normative system upon which they relied was the southern tradition, but they claimed that under that tradition there was a recognition and acceptance of the overlapping role played by the northern tradition in the Yawuru claim area. ... 79. ... The evidence referred to above establishes that, on balance, "the law" is still acknowledged and observed, notwithstanding that many of the rituals of "the law" are no longer practiced. Fundamentally, "the law", as laid down by the southern tradition, remains "the law" that is acknowledged and accepted by the Yawuru community as governing all aspects of its traditional life.' 32 However, it does not follow that the Djugan and the Yawuru each possessed their own discrete communal native title rights and interests at and since sovereignty in respect of the northern and southern areas respectively. The entitlement of different groups to communal native title was considered by the Full Court in Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 ; (2005) 145 FCR 442 (' Alyawarr ') at 466-475 [78]-[112]. The Full Court, after citing a number of cases, observed that members of a 'community' may possess communal native title rights and interests, albeit that they are 'intramurally allocated' to different groups or subsets of the community. Although each of the cases cited by the Full Court turns on its own facts, their Honours (at 475 [112]) accepted that the evidence of 'extensive connections' across the claimant groups supported the primary judge's characterisation of those groups as 'one native title holding community' that had the necessary connection with the land in the claim area 'at a communal or claim group level'. 33 Accordingly, it is necessary to consider the totality of the evidence concerning the Djugan and the Yawuru in order to determine whether, notwithstanding their cultural and other differences at and since sovereignty, the Djugan and the Yawuru are one native title holding community that had the necessary connection with Yawuru 'country' at a communal level. 34 Extensive evidence was adduced to the effect that Yawuru 'country' included the northern area. The evidence, which included the views of senior law men and women, was not seriously challenged. The evidence of senior law men from 'country' adjacent to the claim area and the evidence adduced as to the views of senior Yawuru law men and women was that Yawuru 'country' consisted of the southern and the northern areas. Peter Clancy, a senior Mangala law man regarded the northern area as being within 'Yawuru Country because the old people told me'. A senior Nyangumarta law man stated that the shared law that comes from the Bugarrigarra included 'the whole lot of that country up to Willie Creek'. Evidence adduced as part of the Walman Yawuru case was also to the effect that 'Mimi', a senior Yawuru law woman who lived in Broome up to the 1950s, had claimed that Yawuru country included Broome and extended up to Willie Creek.