Case: Rubibi Community v State of Western Australia (No 5) [2005] FCA 1025
Outcome: cited
The nature and extent of native title 35 - 38 1. Introduction 1 In interim reasons for judgment ( Rubibi Community v State of Western Australia (No 5) [2005] FCA 1025) ('the interim reasons') I determined that: (a) the Yawuru community is a recognisable body of persons united in and by traditional laws and customs which, since sovereignty, have constituted the normative system under which the native title rights and interests in issue in the present case are being claimed ([366]-[369]); (b) under the traditional laws and customs acknowledged and observed by the Yawuru community, native title rights and interests in relation to the claim area are possessed by the Yawuru community which, by those laws and customs, has a connection with land and waters that are situated within that area ([370]-[376]); and (c) the rights and interests possessed by the Yawuru community are communal native title rights and interests ([376]). 2 The key findings in the interim reasons that are relevant for present purposes may be summarised as follows. (a) The Yawuru community ([366]) 3 The present Yawuru community, as generally defined in the genealogies before the Court, is a recognisable body of persons who are likely to be descendants, on an ambilineal or cognatic basis, of members of the Yawuru community at the time of colonial contact and therefore at the time of sovereignty. The genealogies before the Court support an inference of continuity of the Yawuru community that existed at the time of sovereignty through to the present time. As the definition of the Yawuru community, based on ambilineal or cognatic descent, is in accordance with the traditional laws and customs of the Yawuru community, it follows that the present Yawuru community is one whose members are descended from the members of the Yawuru community at sovereignty in accordance with traditional laws and customs. (b) Traditional laws and customs ([367]-[369]) 4 The source of the Yawuru community's traditional laws and customs, which include the laws and customs known as the southern tradition, is the Bugarrigarra . The holding, passing on and receiving of the Yawuru community's traditional knowledge and law has been in accordance with the southern tradition. The southern tradition formed part of the traditional laws and customs of the Yawuru community at sovereignty and is still acknowledged and accepted by the Yawuru community as governing all aspects of the traditional life of the community. In the interim reasons, I made findings concerning the role in the Yawuru community of the traditional laws and customs relating to rai , the Yawuru language, the skin section system, kinship, malinyanu laws and customs, traditional stories, bush names, hunting, bush foods, looking after country, speaking for country, increase sites and permission requirements. When considered cumulatively, the evidence in relation to those matters demonstrated that the present Yawuru community still acknowledges and observes the traditional laws and customs which, since sovereignty, have constituted the normative system under which the native title rights and interests in issue are being claimed. 5 Changes that have occurred over time to the traditional laws and customs of the Yawuru community are of a kind contemplated by those laws and customs and have not been such as to result in those laws and customs no longer being properly characterised as traditional. More specifically, the changes or adaptations to those laws and customs are not of a kind that would result in the native title rights and interests asserted not being possessed under the traditional laws and customs acknowledged and observed by the Yawuru community. 6 While there may have been an evolution of traditional laws and customs, the Yawuru community observes a body of traditional laws and customs which have normative content and which have continued in existence from prior to the time of sovereignty to the present time. Those laws and customs have plainly been transmitted from generation to generation, find their origins in pre-sovereignty norms and, notwithstanding their evolution over time, have had a continuous existence and vitality since sovereignty.