Rubibi Community v State of Western Australia [2001] FCA 1553 | Case summary

REASONS FOR JUDGMENT 1 In my earlier reasons for judgment in this matter ([2001] FCA 607) (which are to be read with and treated as part of these reasons) I concluded that the first applicant ("the Rubibi applicants") had established that the Rubibi claimant group (as defined in [193] of the reasons) held the native title rights and interests claimed by the Rubibi applicants in respect of Reserve 30906 ("the claim area"). I also concluded that the second applicant ("the Leregon applicants"), who represented the Leregon claimant group, did not have the native title rights and interests claimed by that group in respect of the claim area. 2 The native title rights and interests I found were held by the Rubibi claimant group included an entitlement to the right of occupation, use, possession and enjoyment of the claim area, as against the whole world "for ceremonial purposes". Thus, the continued use of, and residence in, certain structures that had been constructed by members of the Leregon claimant group on the claim area ("the Leregon structures") by persons represented by the Leregon applicants appeared to be inconsistent with the native title rights and interests I found were held by the Rubibi claimant group. 3 In that regard I stated at [192]: "The Rubibi applicants' case is that the current residential use of part of the claim area is without the authority or permission of the senior Yawuru law men and is contrary to traditional Yawuru law and custom. However, the legal right of the Rubibi applicants or of the Rubibi claimant group to prevent the continuation of that use, and, if necessary, to remove the Leregon structures was not the subject of submission. A question arises as to whether those issues ought to be resolved between the Rubibi claimant group after a determination of native title has been made or as part of the process of making that determination. Having regard to the obvious animosity that exists between the two groups, there is much to be said in favour of these issues being resolved as part of the existing dispute or controversy, rather than as a separate and subsequent controversy. In the circumstances it is appropriate to make provision for submissions on these issues, including submissions as to the manner in which the dispute is to be determined. Accordingly, my conclusions are necessarily subject to any matters that might arise as a result of those submissions." 4 After delivering my reasons for judgment I made directions for further evidence to be adduced and further submissions to be made in relation to the entitlement, if any, of the native title holders, or the senior Yawuru law men representing their interests in relation to the claim area, to remove the Leregon structures from the claim area and to prevent unauthorised residential use or occupation of any part of that area. I also directed the parties to file submissions as to the form of the determination under s 225 of the Native Title Act 1993 (Cth) ("the NTA") that was appropriate to give effect to my reasons for judgment. 5 The Rubibi applicants and the Leregon applicants filed further evidence and submissions in relation to those issues. The State of Western Australia did not participate in the factual dispute between the Leregon and the Rubibi applicants but filed submissions in relation to the legal issues raised by the Leregon structures and as to the form of the determination that it regarded as appropriate. 6 The Rubibi applicants objected to the filing of further evidence by the Leregon applicants on the grounds that no new issues had arisen concerning the Leregon structures and the Leregon applicants were seeking to re-agitate issues that had already been adversely determined against them. The Leregon applicants claimed that the Rubibi applicants had made their first claims for relief in respect of the Leregon structures after my reasons for judgment and that the principles of natural justice required that they be entitled to file additional evidence in response to those claims. I indicated that I would receive the evidence subject to the objection of the Rubibi applicants, and would deal with the question of admissibility in these reasons for judgment. 7 If I had ruled on the objection I would have ruled that the Leregon applicants were not entitled to present further evidence on the issue of the existence or nature of the native title rights and interests held by the Rubibi claimant community or the Leregon claimant community as those issues were heard and determined at the first hearing. No reason, other than a change from non-legal representation to legal representation has been put forward for re-agitating those matters. I do not regard that reason as justifying or warranting the re-opening of evidence on issues that were raised for determination at the first hearing. On the other hand, I would have ruled that the Leregon applicants were entitled to file evidence on whether they have a legal entitlement to resist the removal of the Leregon structures and on whether the Rubibi applicants are entitled to take steps or exercise powers to remove the Leregon structures, as those claims were first made after the conclusion of the first hearing. While there might be some overlap between the issues the Leregon applicants now seek to agitate and those that were agitated at the first hearing I have not found it necessary to make a ruling limiting the purposes to which the additional evidence may be applied as I have concluded, on the basis of all of the evidence adduced in this matter, that the Leregon applicants and the Leregon claimant group have not established that they have a legal right or interest that entitles them to use or reside in the Leregon structures or to resist their removal from the claim area. 8 In [162] and [163] of my reasons I considered the legal status of the claim area: "Reserve 631 was set aside as a public reserve for public purposes on 24 November 1883 in accordance with Regulation 29 of the Land Regulations 1882 (WA). Although there was power to vest the Reserve in a corporation, that power was not exercised and Reserve 631 was not vested in any person or body. In 1905, pursuant to Pt III of the Land Act 1898 (WA), Reserve 631 was placed under the control and management of the Mayor and Councillors of the Municipality of Broome. In 1919 the Reserve was placed under the control and management of the Broome Road Board. By-laws were made by the Shire in 1907 and by the Board in 1919. The by-laws were principally concerned with managing the depasturing of stock. In 1971, as explained above, Reserve 30906 was excised from the larger area of Reserve 631 and was vested in the Minister for Native Welfare for the purpose of a 'Ceremonial Site'. In 1973 Reserve 30906 was vested in the Aboriginal Lands Trust for the 'Use and Benefit of Aborigines'. Apparently, the change came about because the government decided all land set aside for the benefit of Aborigines would be vested in the Trust which was to have a power to lease. The power has not been exercised in respect of Reserve 30906. No distinction appears to have been made between sites having and not having ceremonial significance." 9 I discussed the origin of the current dispute at [66]-[74]: "Since the mid 1970s there has been considerable acrimony within the Aboriginal community in Broome in relation to the Reserve. Members of the Lee family, who are members of the Leregon clan, sought a lease in relation to the Reserve which involved, inter alia, a proposal for a mangrove crab farming venture. Although in 1979 the Aboriginal Lands Trust resolved to grant a lease to members of the family, the proposal met substantial opposition from other Aboriginal groups in Broome and did not proceed. It appears that senior Aboriginal elders strongly opposed the grant of the lease on the basis that it was not consistent with Aboriginal law. The dispute led to the commencement of Supreme Court proceedings to prevent the lease being granted. From 1980 onwards the Leregon structures were constructed or placed on the Reserve, although the legal basis for that conduct is far from clear. Over the ensuing 20 years the Aboriginal Lands Trust endeavoured to resolve the ongoing dispute in relation to the Leregon structures. In 1990 the Trust resolved to lease the Reserve to the Yawuru Aboriginal Corporation, on the condition that access was granted for cultural purposes and that a sub-lease be granted to Colin Lee for his residence. Although that resolution was said to flow from a meeting of traditional land owners in Broome in 1989, the lease was not issued due to continuing conflict about it among local Aboriginal groups. In the late 1980s a proposal for a crocodile breeding and farming facility in the proximity of, but away from, the Reserve was strongly opposed by the senior Yawuru law men for the Dampier Creek and Fishermen's Bend area on the ground that it would jeopardise sacred activities at the Reserve. The proposal for a crocodile farm did not proceed. Conflict within the community over the use of the Reserve led to considerable strains on ceremonial life at the Reserve. Significant sacred objects were stolen from their repository leading to a successful prosecution of Colin Lee in relation to unlawful possession of those objects. Evidence was given by Patrick Dodson that the presence upon the Reserve of members of the Lee family and other uninitiated persons severely interfered with the conduct of traditional ceremonies at the Reserve. Notwithstanding these problems, in 1990 four young men were put through the first stage of initiation, which involved the conduct of traditional Yawuru ceremonies which have been carried out since the earliest times. The previous first stage ceremonies had been conducted at Kunin in 1980. The most recent ceremony held at Kunin was in November 1994 when the then senior Yawuru law man participated in a ceremony in which two of the Rubibi applicants, Patrick Dodson and Joseph 'Nipper' Roe, were 'put through law' in a second stage ceremony. The ceremony appeared to enable the devolution upon those applicants, together with others, of custodianship for Kunin. The senior law man disappeared shortly afterwards. Colin Lee was called as a witness by the Leregon applicants. He claimed that about 20 years ago he had heard senior law men, including Felix Edgar and Frank Sebastian, say that the Reserve was not sacred and that the only place of significance was a relatively small area around the sheds which stored the sacred objects. He claimed that the rest of the Reserve was 'open ground' and that was why the law men had approved of him building his house on the corner of the Reserve. When cross-examined Colin Lee conceded that the comments that the Reserve was not sacred had not been made to him directly but had been made to the Chairman of the Aboriginal Land Trust, although he did claim that he had heard the statements being made. In response to Colin Lee's evidence the Rubibi applicants recalled Felix Edgar and Frank Sebastian who denied saying that the Reserve was not sacred and denied ever giving permission for the building of the house on the corner of the block. Colin Lee's evidence needs to be understood in the context of the long standing conflict in the community about the manner in which the Reserve might be used and the ample scope for varying interpretations, understandings and recollections of what might have been said at meetings up to 20 years ago. Further, as explained earlier, references in conversation to Kunin might be taken to be references to the Reserve or to the Reserve and the surrounding camping areas. I have not found it necessary to resolve the credit issues involved in the differing versions of what might have been said so long ago as, having regard to the other evidence, I am not persuaded that the evidence given by Colin Lee leads to the conclusion for which he contends, namely that the Reserve is not a sacred site. The Leregon applicants and the State also relied upon certain Aboriginal Lands Trust minutes and other documents in relation to the dispute as evidence that senior law men and, in particular, Frank Sebastian, had acknowledged during the 1980s that Kunin was not a sacred law ground. The references relied upon are ambivalent but, more importantly, are not acknowledged or contained in documents signed by the persons concerned. In my view they do not warrant the conclusion that Kunin is not a sacred site." 10 The Rubibi and the Leregon applicants filed a number of additional affidavits and cross-examined several of the deponents for the purposes of the further hearing. The affidavits filed on behalf of the Rubibi applicants and the evidence of the deponents was to the effect that only the most senior law men, acting collectively as custodians of the claim area as a sacred law ground, had authority under traditional Yawuru law and custom to permit any residential or other non-ceremonial use of the area and no such authority had ever been given in respect of the Leregon structures. The affidavits filed on behalf of the Leregon applicants and the evidence of the deponents was to the effect that certain senior Yawuru law men had approved of the erection of the Leregon structures and had even helped in their construction. In reliance upon that evidence it was contended on behalf of the Leregon applicants that the native title rights or interests of the Yawuru claimant group had been modified by the approval given by Yawuru law men to the erection of the structures. It was contended in the alternative that, as the Leregon structures had been erected on the basis of those approvals, it would now be unconscionable for the Rubibi applicants to remove the structures that had been approved of by their predecessors. Originally, the Leregon applicants claimed a right by adverse possession but did not pursue that claim at the hearing: see s 36 of the Limitations Act 1935 (WA). 11 The State of Western Australia submitted that the removal of the structures is governed by the Land Administration Act 1997 (WA) ("the LAA"). The LAA sets out the procedures to be followed for the removal of unauthorised structures on Crown land. The State contended that if the Leregon structures are unauthorised structures the Court should not pre-empt the procedures provided for in the LAA for the orderly removal of those structures. The State has indicated that if the Court holds that the Leregon structures are unauthorised structures the Minister will undertake the statutory procedures provided for under the LAA in relation to their removal. 12 Section 270(1) of the LAA defines an "unauthorized structure" as follows: "'unauthorized structure' means structure the erection of which - (a) was not, at the time of its erection, authorized under any Act or other law; or (b) has ceased, since the time of its erection, to be authorized by any Act or other law;" 13 Section 270 of the LAA provides for the Minister to give notice directing the removal of unauthorised structures on Crown land. Section 270(6) provides that, after notice has been duly given and subject to an appeal under s 272 (the only ground of which is that the structure is not an unauthorised structure), if the unauthorised structure has not been removed by the given date it becomes property of the Crown and may be removed, destroyed or disposed of in such manner as the Minister thinks fit. 14 While it was an issue between the Rubibi and the Leregon applicants as to whether permission had been given by any senior Yawuru law men for the erection of the Leregon structures, the relevance of that factual dispute to the resolution of the legal issues before the Court is problematic. 15 At all relevant times the claim area was Reserved Crown land under the control and management of the Aboriginal Lands Trust ("the Trust") pursuant to the Aboriginal Affairs Planning Authority Act 1972 (WA). It is common ground that the Trust had no power to lease land managed or controlled by it without the approval of the Minister for Aboriginal Affairs. It is also common ground that, although the Trust resolved to grant a lease of the claim area to the group represented by the former second applicant, who is now deceased ("the former second applicant"), or to a corporation representing that group, no lease was granted and no Ministerial approval was given as a result of the dispute within the Yawuru community over the use to which the claim area may be put. 16 As is clear from the archival records, to which I refer in some detail later in these reasons, the former second applicant and other members of the Leregon claimant group proceeded with the clearing of land within the claim area and the construction of the Leregon structures on the claim area notwithstanding their awareness that: · Ministerial approval of the proposed lease had not been given; and · a number of senior law men, including senior Yawuru law men, were objecting to any residential or non-ceremonial use of the claim area. 17 The Leregon applicants and the members of the Leregon claimant group who had an interest in the Leregon structures were represented by their solicitor at the present hearing. He did not contend that the construction of the Leregon structures was authorised under any State legislation, and the evidence confirms an absence of authorisation. Rather, the Leregon applicants' solicitor contended that the erection of the structures was authorised by senior Yawuru law men. 18 In my view, the fundamental difficulty confronting that contention is that, even if there had been such an authorisation that is not sufficient, of itself, to result in the Leregon structures being lawfully erected or lawfully remaining on the claim area. It is clear that, for present purposes, the only rights or interest in respect of land arising under traditional Aboriginal law or custom that can give rise to legal rights and interests that are recognised by the common law, the NTA, or s 270 of the LAA, are native title rights and interests as defined in s 253 of the NTA. As was observed in the joint judgment in Fejo v Northern Territory (1998) 195 CLR 96 at 128: "Native title has its origin in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title. Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law. There is, therefore, an intersection of traditional laws and customs with the common law. The underlying existence of the traditional laws and customs is a necessary pre-requisite for native title but their existence is not a sufficient basis for recognising native title." 19 In my earlier reasons for judgment I explained why the Leregon applicants had failed to establish that they hold the native title rights or interests claimed on behalf of the Leregon claimant group in respect of the claim area. In particular, the Leregon applicants had not established that they had any native title rights or interest to erect, maintain or reside in the Leregon structures on the claim area. 20 In so far as it is contended that the further evidence filed by the Leregon applicants since the earlier hearing established that some Yawuru law men approved of the construction of the Leregon structures, I am not satisfied that any such approval created or resulted in any native title rights and interest in the claim area in respect of those structures. In that regard the gravamen of the evidence adduced by the Leregon applicants was that Colin Lee was induced to believe that permission had been given by certain Yawuru law men, rather than that such permission created any native title right or interest in respect of the Leregon structures or the claim area. The witnesses called by the Leregon applicants did not claim to be experts in, or persons familiar with, traditional Yawuru law and custom. The evidence adduced by the Leregon applicants at the further hearing, even if it were admitted on the question of whether any native title rights and interests are held by Leregon clan members in the claim area, is not such as to lead me to change the conclusion I reached in my earlier reasons at [184]: "As explained earlier, it is not really in dispute that the Leregon applicants are a sub group of the Yawuru people and, as such, are entitled to participate in the benefit of the native title rights and interests held by the Rubibi claimant group. I am not satisfied, however, that the Leregon applicants have established any independent right to any other native title rights or interests in relation to the claim area. Indeed, the case put on behalf of the Leregon applicants did not really seek to establish any such rights. Rather, as stated above, the thrust of the Leregon applicants' case was to limit the Rubibi claimant group's entitlement to specific sacred sites or areas within the claim area that were used as ceremonial sites. For the reasons set out above, I have concluded that the Rubibi applicants have established their claim to native title rights and interests in respect of the whole of the claim area." 21 Indeed, as I explained at [12] of those reasons: "In the course of the hearing it became clear that, rather than making an independent claim of native title as such, the Leregon applicants were seeking to protect certain housing on, and associated rights of access to, the claim area. The housing consisted of Colin Lee's house (near the south east boundary), Kiddo (who was also referred to in evidence as 'Kitto') Taylor's house (near the east boundary) and a caravan where Donny Taylor resides (also near the east boundary) ('the Leregon structures'). The Leregon applicants claim that each of those persons is a member of the Leregon clan. The Leregon applicants contend that, save for any specific ceremonial sites established to be within the claim area, the area should otherwise be reserved for the general use and benefit of Aboriginal persons." 22 The affidavit and oral evidence adduced on behalf of the Rubibi and the Leregon applicants at both hearings make it quite clear that at all material times the Rubibi and the Leregon applicants, and the groups they represent had, and have maintained, quite different and opposed views as to the ceremonial significance of the claim area. 23 Although it is not strictly necessary to refer extensively to the records it is desirable to summarise what they disclose. Before doing so several observations are appropriate. First, a number of witnesses endeavoured to give evidence of events that occurred 20 or more years ago. Plainly, the reliability of such recollections diminishes over time. Fortunately, the archival records adduced in evidence by the Rubibi applicants provide a contemporaneous written record of the dispute over the Leregon structures. The information in the records was not challenged by the Leregon applicants. The records provide a reasonably reliable record of the events. Thus, to the extent any general recollections of the witnesses might be inconsistent with those records I prefer to rely on the records. However, in doing so, I have not arrived at any view adverse to the credit of any witness. 24 Second, it is clear from the records that the former second applicant was actively representing and prosecuting the interests of the Leregon clan at the time the structures were erected. Colin Lee, his younger brother, is not recorded as having been an active protagonist at that time. Indeed, at the hearing Colin Lee conceded that, until his death, his elder brother was representing the Leregon community's interests. In view of the extensive controversy that this issue generated at the time it is likely that members of the Leregon and the Rubibi claimant groups who were involved with the claim area were aware of the opposition of senior law men to the proposals being pursued by the former second applicant. 25 Third, the records disclose that the former second applicant regarded the area as one that was, and ought to be, available for the general benefit of his group who he claimed had a longstanding association with the claim area and its surrounds. The senior law men in the Broome area and the more traditional communities they represented in relation to the claim area strongly opposed any use of the claim area other than as a sacred ceremonial law ground. The archival records make it quite clear that neither group was in any doubt about the position taken by the other. 26 The following matters appear from the archival records adduced in evidence by Dr Fiona Skyring, a historian called by the Rubibi applicants. 27 The first specific indication of a conflict between the former second applicant and senior law men in the Broome area over use of the claim area is in a letter dated 11 June 1979 from a recently deceased senior law man ("Lulu") to Kevin Morgan, secretary of the Trust, referring to a water hole near Reserve 30906. 28 The letter read in part: "This water hole is of great importance to our beliefs. For many, many years this place has watered our people and given them rest before moving on. Unfortunately, in recent months, a person of Aboriginal blood but not of our ways has seen fit to put up a permanent camp by this place. He also discourages our people from camping beside this water hole. Mango trees have been planted nearby and we fear that what should be there for the good of all will become the property of one. As you hold this Reserve in Trust for our people we look to you to ask this man to move on, thus returning this ground to its proper use." 29 Several weeks later the former second applicant wrote to the Trust asking for its assistance in the dispute with Lulu. He said that the Fisheries Department had already given him a licence to farm crabs, provided that: "I can straighten out the sacred grounds side of things. [Lulu] is hindering me in this operation by claiming this area is a sacred site. He doesn't belong to my tribe. Now by tribal laws, this area belongs to my tribe. [Lulu] is causing friction. The way things are going we could have a situation similar to Noonkanbah. I've spent money on this experimental farm and I don't intend to lose the area without a fight." 30 At a Trust Board meeting in July 1979 the Chairman spoke of an "occupancy dispute" between Lulu, who believed the area had "sacred significance" and the former second applicant who claimed otherwise. 31 On 29 September 1979, on behalf of Lulu, Jack Mulardy, John Dudu, Tommy Edgar, Paddy Sebastian and Donald Grey (all of whom were senior law men in the Broome area) Philip Vincent of the Aboriginal Legal Service ("the ALS") wrote a letter to the Aboriginal Sites Department of the WA Museum requesting assistance to protect the sites at Dampier Creek near Reserve 30906. It was requested "that the whole of the sacred site complex should receive protection under the Aboriginal Heritage Act". This request was said to have been "considered by my clients to be an urgent matter in the light of recent activity in the area which is regarded with alarm and accordingly we would be grateful if their application could be treated as such". 32 At the Trust meeting on 13 and 14 October 1979 a resolution was moved that "Reserve 30906 be leased to [the former second applicant's] group for 99 years at peppercorn rental", and that the Trust would forward "a letter enabling [the former second applicant] to take up occupancy…as soon as possible". Before this Trust meeting the former second applicant had begun work. He prepared an area for gravel which he said was not on the reserve and began bulldozing what he referred to as "the boundary". The former second applicant was confronted by an ALS officer Gus Bottrill, together with Tommy Edgar and Lulu. He wrote to the Trust Chairman, Ken Colbung in early October 1979 saying that the three men "said that someone had put a bulldozer through the sacred sites. I told them that I was the one that put the dozer through that area and that the dozer only cleared the trees on the boundary line. [Lulu] said that I should not have done this as this was sacred ground. I later spoke to Gus Bottrill and he said that he doesnt think I've got a chance of getting the place. I've been right through and I think its big enough to turn into a little village and can still have space for a market garden. I feel it would be a sinful waste if [Lulu] got it for his purpose. As you know he only wants to keep the two tin shacks and not develop that land." 33 Following the resolution at the meeting held on 13 and 14 October 1979 the Trust sent the former second applicant a letter dated 16 October 1979 notifying him that the Trust had approved the application from his group, the Yardoogarra Aboriginal Corporation, and that: "Documentation for a ninety nine year lease at peppercorn rental will proceed immediately, however, the Trust has no objection to your Corporation to occupy and commence work on the land immediately." The next day, Morgan wrote again to the former second applicant stating: "With reference to my letter of 16 October 1979, I have been instructed to advise you not to commence any work on the reserve until such time as certain matters have been resolved. I will advise you of further developments in due course." 34 It appears that the letter of 17 October 1979 was occasioned by a visit by a Dr Petrie to the head of the Aboriginal Affairs Department protesting the decision to grant the Yardoogarra Aboriginal Corporation a lease over the Reserve. 35 On 31 October 1979 the Trust received a letter from the former second applicant that read in part: "Dear Sir, We of the Yardoogarra group feel that your dept. have committed yourselves regarding your letter dated Oct. 16th, giving us the go ahead on Reserve No. 30906. I also received a letter dated Oct 17th advising me to hang five until certain matters have transpired. Your committee has made a decision and granted the Yardoogarra group Reserve no. 30906 and I feel that you should forward the necessary documents and ignore any other body. We feel that if any other dept. can over ride another depts decision then the whole thing is a farce. Please carry on as if nothing has happened and let us fight those who object to us having this land. As the Yarro people are sick and tired of the Museum, [Lulu], Tommy Edgar, and the rest of the idiots of this town, we want to do our own thing without further delay." 36 At a meeting in January 1980 the Trust rescinded its previous decision to grant a lease to the Yardoogarra Corporation. "The minutes recorded that: 'the reserve should be left unoccupied with the view of the Trust being that the area was of some significance to segments of the local population. No leasing arrangements would be made until agreement had been reached by the local people.' In the same meeting, the Trust resolved that 'the site within the reserve should be declared protected under the Aboriginal Heritage Act.' Another resolution was passed requesting that the Western Australian Museum declare the sites protected, and that the Trust support attempts to obtain land at Yardoogarra Creek on Thangoo station. [Trust] Secretary Morgan wrote to [the former second applicant] informing him of the Trust's decision. Morgan's letter indicated that he looked forward to the resolution of the dispute which had by this stage continued for a year and a half: 'The Trust gave deep consideration to the whole matter during the recent meeting of the Trust and decided that the reserve should be left unoccupied for the time being, accepting that the area is of some significance to some of the local people. The Trust is endeavouring to obtain land at Yardoogarra Creek and also the area you mentioned, Nulungu, hoping that when this is achieved, the whole matter of Fisherman's Bend will be clearer.'" 37 In July 1980 Lulu and Tommy Edgar complained that the former second applicant was clearing an area on the edge of the reserve. The ALS sent the Trust a telegram to that effect on 23 July 1980. Kim Akerman (who was working as an anthropologist with the Kimberley Land Council at the time) assisted a number of senior law men in the Broome area, including one of the most senior Yawuru law men at the time (Paddy Djaigween) in making a joint written request to the ALS to take steps to prevent the former second applicant from proceeding with his project at the claim area. 38 On 1 August 1980 the Trust sent a telegram telling the former second applicant to "cease operations". That same day Paddy Djiagween, T Edgar, Lulu, Jubo Samit, Donald Grey, Pulany and Joe (probably Roe) wrote to the chairman of the Trust saying: "Since the July meeting of the Lands Trust at Fisherman's Bend Broome, [the former second applicant] has been entering upon Reserve 30906, cleared a large area therein by using mechanical equipment and has commenced erecting a permanent building. He knows he is on the reserve land but has ignored requests by custodians and other traditional religious leaders to stop work. Lands Trust officers asked on Wednesday 23rd July 1980 to intervene but have not acted. As this clearing of the bush and the proximity of the house to the repositories and ceremonial sites would render the reserve unusable for its original purpose namely secret ceremonies. We now ask you to take whatever action necessary to remove [the former second applicant] and other non initiates from the reserve forthwith. We ask you to regard this matter as most urgent." 39 The Trust Chairman was in Broome on 8 and 9 August 1980 to meet with the two groups. A file note reports that, in a meeting with those opposing grant of the lease: "The Chairman proposed that the reserve remain with the Trust with no development occurring and that the Museum appoint custodians for the reserve with its ceremonial [handwritten word] areas and storehouses. He also advised that [the former second applicant] would be advised to quit the reserve removing his partly constructed building." 40 At this time the Chairman also met with the former second applicant and his brother Colin and "conveyed the decision that no land would be available to the [Yardoogarra Group]" (file note KI Morgan 13 August 1980). At this meeting David Djiagween stated that he was a senior law man and "that there was no reason why the former second applicant's group should not lose a portion of the reserve". 41 In a letter received by the Trust on 1 October 1980, the former second applicant expressed his frustration with the Trust's handling of the dispute. The letter read in part: "We the Yardoogarra Group are applying for Reserve No 30906 and would appreciate the final decision whether we'll get it or not. Your letter dated 16th October 1979 granted us Reserve No 30906 and the very next day we received a letter saying no go. Then the Committee of the Aboriginal Lands Trust came to Broome. At that meeting it was agreed upon to go ahead and build. My brother Colin Lee went ahead and started erecting a building then we received a telegram from Kevin Morgan that all work on Reserve No 30906 was to cease immediately until further investigation. We're just tired of this go, stop, go, stop." 42 On 14 October 1980 Tommy Edgar, Lulu and Paddy Sebastian sent a telegram to the Trust Chairman urging him to act against the former second applicant, who they claimed was continuing to build on the reserve. On 30 October 1980 they, together with others, sent a letter to the Minister for Community Affairs (and copied to Peter Dowding MP) which stated: "Since the issue arose and the Lands Trust became involved [the former second applicant], has, against both verbal and written direction from the Lands Trust, continued to intrude onto the reserve to the extent of clearing and erecting buildings close to our major store houses and a ceremonial ground." 43 The former second applicant also petitioned the Minister, stating in a letter received on 10 November 1980: "The community is most keen to see development of this kind proceed as the land holds no special ceremonial significance for the members of the community. Broome is growing rapidly and we feel such a development by the Yardoogarra Community will be of great benefit to our people." Dr Skyring's historical report states that: "On 8 December Minister Hassell responded to [the former second applicant], [Lulu] and Edgar by saying it was the Land Trust's role to 'deliberate on the issue'. In his letter to [the former second applicant], the Minister wrote that he was not prepared to grant a lease over the whole reserve because it was clear that the area had 'some significance', but that he would support a compromise whereby [the former second applicant] could have a portion of the reserve." 44 On 16 December 1980, Lulu, Tommy Edgar and Patrick Roe complained to the Trust that the former second applicant was clearing and building on the reserve and that the Trust's inactivity was "embarrassing". The Trust responded by saying that a decision about the reserve would be made in January 1981. In response, on 17 December 1980 Patrick Roe sent a telegram to the Chairman of the Trust stating: "BY THE TIME DECISION IS MADE [THE FORMER SECOND APPLICANT] WILL POSSIBLY HAVE FINISHED BUILDING AND WILL GET LAND AS FAIT ACCOMPLI. WE ARE MOST DISTURBED AT YR INABILITY TO STOP [HIM] - HAS A.L.T. ALREADY DECIDED TO MAKE A COMPROMISE THAT CAN ONLY AFFECT THE CEREMONIAL LIFE OF THE AREA, ARE WE TO BE PUSHED OFF AGAIN BY PEOPLE WHO WANT TO GET RICH AT THE EXPENSE OF OUR LAW. WE HAVE A RIGHT TO EXPECT YR ASSISTANCE IN PROTECTING THIS AREA WHICH WAS SPECIFICALLY SET ASIDE FOR LAW BUSINESS BY THE GOVT. ARE U GOING TO HELP OR NOT, A DECISION IN JANUARY WILL BE TOO LATE AND [THE FORMER SECOND APPLICANT] WILL BE SO ENTRENCHED THAT U WILL NOT SEE FIT TO REMOVE HIS PRESENCE FROM OUR BUSINESS AREA. WE WLD LIKE SOME ACTION NOW." 45 In January 1981 the Trust acceded to a further application for development of the reserve by a newcomer to the dispute, who wanted to develop the area as a riding school. At a Trust board meeting in January 1981 the members resolved to divide the 300 acres of the reserve into four unequal sections, with approximately 2/3 of the reserve going to a riding school. One hundred acres was proposed to be set aside as a buffer zone around the storage sheds, with ten acres for use by the Yardoogarra Corporation (the former second applicant's group). 46 Lulu wrote a long letter dated 3 February 1981 to the Chairman of the Aboriginal Cultural Material Committee stating in part: "Where the Lands Trust has suggested [the former second applicant] get 10 acres of land - land he has already squatted and built on, disregarding direction from the Trust, is within 300 metres of one of our store sheds - does this give us the peace and to keep our laws away from the non-tribal peoples." 47 In July 1981, the Trust Board resolved "to seek the approval of the Hon. Minister for Community Welfare to lease the abovementioned reserve [no 30906] to the traditional owners, namely the Yardoogarra Aboriginal Corporation for a term of 99 years at peppercorn rental. The lease is subject to the relocation of the storesheds in a suitable area on the reserve by negotiation." 48 At a meeting on 10 August 1981, recorded in a file note dated 18 August 1981, it was made clear that the Trust board's decision would be submitted to the Minister and that the only recourse for those dissatisfied by the Trust decision would be to petition the Minister. 49 Although the Trust was proceeding to take steps necessary to lease the reserve to the Yardoogarra Corporation, the Trust maintained its opposition to the construction of houses on the reserve area. In response to reports that the former second applicant was again building on the reserve, the Chairman of the Trust sent a telegram to him stating: "INFORMATION RECEIVED INDICATES THAT YOU ARE CONTINUIING TO WORK ON FISHERMANS BEND RESERVE STOP THE MATTER AS YOU ARE AWARE IS WITH THE MINISTER AND THERE SHOULD BE NO INTRUSION INTO THE RESERVE UNTIL HIS DECISION IS KNOWN STOP THE CHAIRMAN OF THE TRUST ORDERS THAT ANY ACTIVITIES WITHIN THE RESERVE CEASE IMMEDIATELY STOP" The former second applicant replied: "RE YOUR TELEGRAM WILL CONTINUE TO OCCUPY AND DEVELOP FISHERMAN BEND RESERVE STOP THE ONLY WAY TO SHIFT US IS TO TEACH MORGAN TO OPERATE A BULLDOZER." The Bidyadanga and Goolarabooloo communities also protested against the Trust's actions. Their objections were sent by telegram from the Department of Aboriginal Affairs office in Derby: "ELDERS OF THE ABOVE COMMUNITIES WISH THE FOLLOWING MESSAGE TO BE CONVEYED TO THE ALT MEETING OF 10TH AND 11TH OCTOBER 1981: JACK MULARDY, JOHN DODO, JOSEPH WANDI AND SAMMY MULLIN OF BIDYADANGA AND TOMMY EDGAR, JUBO SAMIT, [LULU], DONALD GREY, JACK DIGBAR, PADDY SEBASTIAN, PATRICK ROE AND [SUZY GILBERT'S HUSBAND] OF GOOLARABOOLOO EXPRESS DEEP CONCERN AT THE ERECTION OF TWO BUILDINGS AT FISHERMAN'S BEND RESERVE ON LAND VERY NEAR STORESHED FOR SACRED OBJECTS AND ON SURROUNDING CEREMONIAL GROUND - URGENTLY REQUEST THAT ALT GIVE ITS FULL SUPPORT IN ASSISTING WITH REMOVAL OF THESE BUILDINGS AND THE PRESERVATION OF OUR CEREMONIAL AREAS." 50 A file note by District Officer Martin Irving dated 8 October 1981, recording a visit to Fisherman's Bend with Tommy Edgar, referred to a building and a large cleared area, some bores, a bulldozer and building materials on the site. The note stated that after Martin Irving and Tommy Edgar were approached by the former second applicant he: "…informed me that I could tell Mr Morgan that he was the leader of the Yardoogarra People and he was going to develop the reserve and he didn't care what Mr Morgan, Mr Hassell [the Minister] or anyone else said for that matter. We were then on the South/Eastern corner of the reserve and [the former second applicant] informed me that he would have a building on this spot within weeks. Attempts were then made to have a three way discussion between Tommy Edgar, myself and himself. This was not very successful as Tommy was insistent that [the former second applicant] was on the land illegally and [he] was equally insistent that he had permission to be there and develop it as he felt fit to benefit the Yardoogarra People." 51 On 21 January 1982 a writ was filed in the Supreme Court of Western Australia with Tommy Edgar, Lulu, Jack Mulardy, John Dodo, Paddy Sebastian, Donald Grey as plaintiffs, and the former second applicant, the Trust, William Ralph Boucher Hassell, and the Trustees of the Western Australian Museum as defendants. The dispute over use of the claim area was never resolved. An endeavour by the Trust in 1990 to resolve the dispute by leasing the area to the Yawuru Aboriginal Corporation with a sub-lease to Colin Lee for his residence was also unsuccessful. 52 The only evidence led at the further hearing as to how such a dispute is to be resolved under traditional Yawuru law and custom was adduced by the Rubibi applicants. Patrick Dodson stated: "Significant decisions about the use of the law ground are made by way of closed discussions between senior Yawuru law men and the other senior law men who share the Southern tradition." 53 The "Southern tradition" is shared by several traditional communities that have a common attachment to the claim area as a law ground. When asked as to who, under Yawuru customary law, had authority to give permission to erect the Leregon structures on the claim area, Mr Dodson stated: "Would have been all the bosses at the time; would have been people like my grandfather, [Lulu], the Karajarri bosses, people that are involved with the Southern Tradition broadly, those senior law men, what we'd call pirrga [birrga], the boss people, and they would have to meet together and make that agreement. It would be an absolutely extraordinary thing if they agreed, and they - my knowledge is they never agreed." 54 Steven Possum, a senior law man from the Bidyadangar community, stated that under Yawuru law: "If an important decision is to be made about a law ground for that law, the proper way is for all the lawmen to get together and talk about it. There has to be agreement. One man can't decide by himself." 55 Kim Akerman, an anthropologist with extensive experience in Yawuru law and custom, stated: "Meetings of this kind (ie. of senior law men) were the traditional means by which senior law men exercised their shared responsibility to take action to protect the law ground." 56 The evidence of Messrs Dodson, Possum and Akerman was not seriously disputed and I accept it. Indeed, the evidence accords with the procedure of consultation and consensus adopted by the senior law men who gave evidence in relation to the claim area at the original hearing. The evidence adduced by the Rubibi applicants establishes that in the 1979-1980 period, when the erection of the Leregon structures commenced, the senior law men were seeking to stop the erection of the Leregon structures as they were inconsistent with the law ground's status as a sacred ceremonial site. 57 The evidence adduced by the Leregon applicants, but in particular the evidence of Colin Lee, is to the effect that certain Yawuru law men (Pulany, Dickie Johnson and David Djaigween) had approved of or did not oppose the construction of the Leregon structures, and even assisted in their construction. While that appears to have occurred I do not accept that such approvals were given in accordance with traditional Yawuru law and custom. Indeed, Colin Lee stated that he did not know how traditional decisions were made. He said he sought the approval of Pulany (his "God-brother" through his mother's side) to the erection of his house on the claim area primarily as he did not want to give offence because of the family relationship. Colin Lee said there was "not really" any other reason for seeking Pulany's permission. Pulany appears to have been a senior Yawuru law man at the time who held keys to the storage shed on the claim area in which sacred objects were kept. 58 It follows from the foregoing that no permission or approval was given in accordance with traditional Yawuru law and custom to the construction and use of the Leregon structures on the claim area. Accordingly, a necessary pre-requisite for a native title right or interest is absent. 59 I turn now to consider the situation under the LAA. The Leregon structures were not at the time of their erection, or at any time since, authorised under "any Act or other law". As a consequence the structures are unauthorised structures as defined in s 270(1). The Leregon applicants therefore have not established that they had any legal entitlement to erect the Leregon structures or that there is any legal basis for those structures to lawfully remain on the claim area. It follows from those conclusions that there is no legal impediment to the Minister removing the Leregon structures in accordance with the procedures laid down in s 270 of the LAA. As any removal that is proposed to take place is intended to be a removal by the Minister under the LAA, the issue of whether a removal by the Rubibi applicants would be unconscionable does not arise for decision. Accordingly, it is unnecessary to resolve the factual dispute as to whether the former second applicant, his brother Colin Lee, or any other member of the Leregon claimant group was induced to believe that they had the approval of some senior Yawuru law men to erect the Leregon structures as, even if they had been induced to hold that belief, such a circumstance cannot give rise to a legal entitlement to maintain unauthorised structures on Crown land. In any event, for the reasons set out above, such approval as was given is not binding under Yawuru law and custom or otherwise on succeeding senior Yawuru law men in a manner that would preclude them from exercising the powers they have under traditional Yawuru law and custom, or otherwise, to remove the Leregon structures. 60 The remaining issue relates to the determination that is to be made under s 225 of the NTA. Section 225 provides: "A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area ) of land or waters and, if it does exist, a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and (b) the nature and extent of the native title rights and interests in relation to the determination area; and (c) the nature and extent of any other interests in relation to the determination area; and (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and (e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others." 61 Apart from issues that related to the Leregon structures there was little difference between the draft determinations proffered by the parties as giving effect to my earlier reasons for judgment. The Determination of Native Title that I propose to make pursuant to s 225 of the NTA, and the other orders of the Court, are as follows: "1. (i) The Determination Area is Reserve 30906, being Location No 79 on Diagram 74811, Plan Broome Regional, in the West Kimberley Region of the State of Western Australia. (ii) The native title rights and interests set out in paragraph 3 exist in the Determination Area. 2. The native title is held by the Yawuru Community, namely those persons set out in the Second Schedule, as common law holders of native title. 3. Subject to paragraphs 4, 5, 6 and 7 the nature and extent of the native title rights and interests in the Determination Area are: (a) rights and interests to possess, occupy, use and enjoy the Determination Area for ceremonial purposes; (b) the right to make decisions about the use and enjoyment of the Determination Area; (c) the right to conduct ceremonies on the Determination Area, in accordance with traditional law and customs; (d) the right of access to the Determination Area for ceremonial purposes; (e) the right to control the access of others to the Determination Area; (f) the right to use and enjoy the resources of the Determination Area for ceremonial purposes; (g) the right to control the access of others to the Determination Area, including the right to prohibit or prevent any residential or other use of the claim area that is inconsistent with its use as a sacred ceremonial area under traditional laws and customs; (h) the right to control the use and enjoyment of others of the resources of the Determination Area; (i) the right to hunt and gather for ceremonial purposes; (j) the right to manufacture ceremonial artefacts, tools and weapons from the resources of the Determination Area for ceremonial purposes; (k) the right to maintain and protect the Determination Area as a sacred ceremonial area under traditional laws and customs. The native title rights and interests referred to in this paragraph confer upon the Yawuru Community possession, occupation, use and enjoyment of the Determination Area to the exclusion of all others for the purposes set out. 4. To the extent that any minerals, petroleum or gas within the Determination Area are wholly owned by the Crown in the right of the Commonwealth or the State of Western Australia, they are not part of the native title rights and interests held by the Yawuru community. 5. The nature and extent of other interests in relation to the Determination Area are those set out in the First Schedule. 6. The relationship between the native title rights and interests recognised by this Determination and the other interests referred to in paragraphs 4 and 5 ("the other rights and interests") is that: (i) to the extent that the other rights and interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist, but have no effect in relation to the other rights and interests to the extent of the inconsistency for so long as the other rights and interests exist; and (ii) to avoid doubt, the existence and exercise of the native title rights and interests do not prevent the doing of the activity required or permitted to be done by or under the other rights and interests; and the other rights and interests, and the doing of any activity required or permitted to be done by or under the other rights and interests, prevails over the native title rights and interest and any exercise of the native title rights and interests, but does not extinguish them. 7. The native title rights and interests are subject to and exercisable in accordance with the laws of the State and the Commonwealth, including the common law. 8. The structures described in [12] of the reasons for judgment in Rubibi Community & Anor v The State of Western Australia & Ors [2001] FCA 607 as "the Leregon structures" are unauthorised structures as defined in s 270(1) of the Land Administration Act 1997 (WA). 9. Within three months of the date these orders are made the first applicants are to indicate whether the Yawuru Community intends to have the native title rights and interests held in trust and, if so, the first applicants are to nominate in writing to the Federal Court a prescribed body corporate to be trustee of the native title rights and interests, forwarding the written consent of the body corporate with the nomination. 10. Subject to any order to the contrary by the Court, if a prescribed body corporate is nominated in accordance with Order 9, it is to hold the native title rights in trust for the Yawuru Community. 11. In the event that a prescribed body corporate is not nominated in accordance with Order 9, the native title rights and interests are to be held by the Yawuru Community and the matter is to be relisted by the Registrar for the purpose of the Court considering whether to make orders in accordance with s 57(2)(c) of the Native Title Act 1993 (Cth). 12. The claim by the second applicant for a determination of native title in the Determination Area is dismissed. 13. Reserve liberty to apply. FIRST SCHEDULE The nature and extent of any other interests in the Determination Area are as follows: The interest of the Aboriginal Lands Trust in the control and management of Reserve 30906 pursuant to the Aboriginal Affairs Planning Authority Act 1972. SECOND SCHEDULE The common law holders of native title, comprising the Yawuru Community, are the descendants of Nyobing Babere, Chimbere Sitocay, Aloysious Louis Dolby, Jack and Pollyanna Mangain, Lija (wife of Phillip O'Brien Taylor), Nyilandin, Joseph Mary, Paddy Djiagween, Lucy Marcella Roe, Mary Minyal, Cecilia Ngangon, Nygingula, Annie Mawunga, Milangka, Lena Charlie, Lisa Lija (daughter of Bornal and Gurdan), Minybal Esther Edro, Philomena Carter, Aubrey Kelly Edar, John Two Fingers, Mary Budjinka, Yungula (first wife of George Harriot Roe), Yungula (second wife of George Harriot Roe), Tommy Roe Guminy, Dorothy Kelly, Lydia Kanagai, Solong Archill, Jiriny, Dockan Harry Minybal, Maggie Kangaroo (Kangode/Kanado), Lucy Wararr and Philomena Polly Vincent (nee Pedro)." 62 The orders that are relevant to the Leregon structures are set out in paras 3(g), 7 and 8. In view of the dispute over residential use of the claim area and my conclusion that the claim area is to be exclusively occupied, used and enjoyed as a ceremonial area, it is appropriate to specify in para 3(g) that the native title rights and interests include the right to prohibit or prevent any residential or other use of the area that is inconsistent with its use as a ceremonial area. As is made clear in para 7, the native title rights and interests are subject to and are to be exercisable in accordance with State and Commonwealth law. 63 I have also made a declaration in para 8 that the Leregon structures are unauthorised structures. It is common ground that the Court has jurisdiction under s 81 of the NTA and under its accrued jurisdiction to make that declaration. The dispute about the legality of the Leregon structures and the right of the Leregon applicants to maintain them, whether as a right or interest arising under the NTA or otherwise, was part of the justiciable controversy between the parties and it is therefore appropriate to give effect to my decision resolving that issue by granting appropriate declaratory relief. As the Rubibi applicants and the State expressed a preference for the issue of removal of the Leregon structures to be dealt with under the LAA it is not necessary or appropriate to grant any other relief in relation to the removal of those structures. 64 I have reserved liberty to apply generally to enable any matters that may arise in respect of the orders to be raised with the Court. 65 Finally, as the claim of the Leregon applicants has failed it is appropriate to dismiss it. 66 Before departing from the present matter I wish to record the Court's appreciation to Mr Robert Nash for appearing at the further hearing on a pro bono basis as solicitor for the Leregon applicants. His legal representation of those applicants assisted his clients and the Court in the difficult task of resolving a long standing intra-communal dispute. 67 It is also appropriate to mention that where my attention has been drawn to the fact that it is inappropriate to refer to a particular person who is now deceased by name, I have endeavoured to refer to that person by an appropriate description or by the name given to me by the parties. I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

Rubibi Community v State of Western Australia

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (2)

Cited By (1)