Case: Sampi (on behalf of the Bardi and Jawi People) v Western Australia [2005] FCA 777
Outcome: cited
WAFIC submitted, 'as a matter of formality', that all native title rights to take and use P. maxima (a species of pearl oyster) have been extinguished by the enactment of the Pearling Act 1990 (WA) and the legislative predecessors to that Act (particularly the Pearling Act 1912 (WA)). The reason for the 'formal' submission was that WAFIC accepted that in Sampi (on behalf of the Bardi and Jawi People) v Western Australia [2005] FCA 777 (' Sampi ') at [1146]-[1147], French J had rejected the same submission. WAFIC also accepted that the decision of French J would be followed by other single judges of the Court unless it was shown to be clearly wrong. Although WAFIC wished to preserve the point for any appeal, it did not contend that the decision of French J was clearly wrong. Accordingly, I reject WAFIC's submission for the reasons given by French J in Sampi , with which I respectfully agree. 16 Several issues arose concerning the description of the native title holders. In accordance with the evidence concerning the traditional laws and customs acknowledged and observed by the Yawuru community, and the findings in Rubibi No 5 and Rubibi No 6 , I am satisfied that: (a) Lulu should not be named as one of the apical ancestors; (b) (i) membership of the native title holding community in the case of a descendant of an apical ancestor does not require the criteria of self-identification or general community acceptance to be satisfied where both parents of the descendant are Yawuru; (ii) where only one parent of a descendant is Yawuru, the criterion of self-identification must be satisfied; and (c) persons who are not descendants of an apical ancestor may nonetheless be members of the native title holding community if they were adopted as children or grown up by a Yawuru person as a member of the Yawuru community, or are persons who were born in or have a long term physical association with the Yawuru claim area and have cultural responsibilities in relation to that area, provided that the criteria of self-identification and general community acceptance are satisfied. 17 The Walman Yawuru representative made certain criticisms of the criteria in (b) and (c) above. In particular, it was contended that the criterion of general community acceptance should apply where there was only one Yawuru parent. The criterion of general community acceptance referred to in par (c) above is based on the findings and observations I made concerning that matter at [291] and [348] in Rubibi 5 and at [104] and [105] in Rubibi 6 . I have been troubled by whether that criterion should also apply to the situation of a descendant who has only one Yawuru parent but have decided, primarily on the basis of the evidence referred at [105] in Rubibi No 6 , that that criterion is not required by traditional law and custom. However, it should be emphasised that in order for self-identification to be genuine, something more is required than an announcement on a particular day that a person identifies himself or herself as a member of the Yawuru community. The genuineness of self-identification is to be determined by reference to all relevant facts, which can include past conduct in relation to self-identification. In all the circumstances, I am not satisfied that traditional law and custom requires that the additional criterion of general community acceptance must be satisfied in the case of a descendant who only has one Yawuru parent.