The findings of the primary judge regarding the possession of native title rights and interests by the Yawuru community and the status of the Djugan people
37 The primary judge described the claim of the Yawuru claimants as "a claim for communal native title rights and interests as it is claimed to be made on behalf of a community of people, namely the Yawuru community as defined in the application." He recorded the Yawuru claimants' contention that they were "a body of persons united in and by its acknowledgment and observance of a body of traditional laws and customs" in the sense required by Yorta Yorta: see Rubibi (No 5) at [18].
38 His Honour concluded in Rubibi (No 5) that that contention was made out on the evidence. His findings in this respect are conveniently summarised at [366]-[367] of the reasons for judgment:
[366] I am satisfied that the present Yawuru community, as generally defined in the genealogies, 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 (see [177]-[181], [266], [291] and [362]-[363]). As I have concluded that a definition of the Yawuru community on the basis of ambilineal or cognatic descent is in accordance with the traditional laws and customs of the Yawuru community (see [181], [266], [290]-[291] and [362]-[364]), it follows that the present Yawuru community is not a new community or society or one whose members are not descended in accordance with traditional law and custom from the members of the Yawuru community at sovereignty.
[367] The source of the Yawuru community's traditional laws and customs is the southern tradition, as laid down in the Bugarrigarra (see [53]). The holding, passing on and receiving of the Yawuru community's traditional knowledge and 'law' has been as laid down in 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 (see [79]). My findings concerning the role in the Yawuru community of the traditional laws and customs relating to rai (see [90]), the Yawuru language (see [96]), 'skin', kinship and malinyanu laws and customs (see [109]), traditional stories (see [122]), name traditions (see [131]), hunting and bush foods (see [136]), 'looking after country' and 'speaking for country' (see [153]), 'increase sites' (see [159]) and permission requirements (see [173]), when considered cumulatively, demonstrate 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.
39 The State, at least on this aspect of its appeal, did not challenge those conclusions insofar as his Honour found that native title was held by the Yawuru community in the southern part of the Yawuru claim area, in accordance with the law as laid down in the southern tradition. The further findings of the primary judge in relation to the role of the Djugan people in relation to the Yawuru community and the possession by that community of native title rights and interests in the northern portion of the claim area, however, have been contested on appeal.
40 The primary judge considered the status of the Djugan people in Rubibi (No 6) and concluded that the Djugan were a subset or subgroup of the Yawuru community at and since sovereignty; and, as their numbers declined during the twentieth century, the Djugan were "absorbed" into the broader Yawuru community. A result of that absorption was that the practice of the northern tradition, characterised by his Honour as "the acknowledgement and observance of some of the discrete traditional laws and customs" of the native title holding community, was substantially replaced by the practice of the southern tradition by the Yawuru community: Rubibi (No 6) at [82]-[83] (emphasis added).
41 It was common ground at first instance that historically the Yawuru community (practising the southern tradition) has been associated with the "southern area" and the Djugan community (practising the northern tradition) has been associated with the "northern area". The primary judge described the northern and southern traditions as "distinct mytho-ritual traditions with their own law grounds in the Yawuru claim area and with their own senior law men responsible for those grounds." He found, however, that "each of the traditions is underpinned by and derived from the one source, which is a common belief in the Bugarrigarra". His Honour found that although the northern and southern traditions were culturally distinct, many of their traditional laws and customs were the same or substantially the same; and the traditional laws and customs acknowledged and observed by the Yawuru community provided for the practice of the northern and southern traditions in the Yawuru claim area: Rubibi No 6 at [52].
42 The primary judge noted that "as a result of European contact, the Djugan disintegrated as an identifiable group and became unable to sustain their own legal and cultural tradition." However, he accepted the submission of the Yawuru claimants that
The nature of [the Djugan population] collapse was not such that all Djugan people were wiped out or that all features of their culture were destroyed. There are to the present day some living Djugan, and these form part of the Yawuru and are represented in the claimant group. However, the Djugan had to rely upon members of the Yawuru to maintain the basis of their traditional law and culture and, over time, the relationship between the Djugan and the Yawuru evolved to the point where one social grouping remained, the Yawuru.
43 His Honour found that the Djugan was designated by the Bugarrigarra as "a subset or subgroup of the Yawuru speaking community at and since sovereignty". He expressed his findings in relation to the Djugan at Rubibi (No 6) at [82]-[84]:
[82] I have concluded on the balance of probabilities that, irrespective of whether in anthropological terms they were correctly designated to be separate tribes, the extensive connections and commonalities between the Djugan and the Yawuru (including their common Yawuru language) resulted in the Djugan being designated by the Bugarrigarra as a subset or subgroup of the Yawuru speaking community at and since sovereignty. In my view, that community was united in and by its acknowledgement and observance of a body of laws and customs that each community's members believed had been laid down by the Bugarrigarra, in so far as those laws and customs related to Yawuru country. By those laws and customs, which are the specific laws and customs I described in the interim reasons, the Yawuru community established and maintained the requisite connection, at and since sovereignty, with both the northern and southern areas (including the intertidal zone) of the claim area.
[83] As a result of the absorption of the Djugan into the broader Yawuru community during the twentieth century, the practice of the northern tradition by descendants of the Djugan is likely to have been substantially replaced by the practice of the southern tradition by the Yawuru community throughout the claim area. However, I do not regard that as detracting from the entitlement of the Yawuru community to native title in relation to Yawuru country. The reason for that conclusion is that the cessation of the practice of the northern tradition by part of the Yawuru community is no more than a cessation of the acknowledgment and observance of some of the discrete traditional laws and customs acknowledged and observed by one of the subgroups constituting the native title holding community. Further, I am satisfied that the continuity of the practice of the southern tradition provided a continuity of the practice of the traditional laws and customs that provide the foundation for the Yawuru community's entitlement to native title in the Yawuru claim area. In that regard it is relevant, as was observed by Palmer, that the two traditions shared much in common in relation to their respective traditional laws and customs.
[84] For the above reasons, I have concluded that the relevant community possessing communal native title at and since sovereignty is the Yawuru community, of which the Djugan is a subset or subgroup.
44 His Honour was thus satisfied that the Yawuru community possessed communal native title rights and interests in the northern, as well as the southern, areas (that is, the entire Yawuru claim area, subject to those parts in which native title was found to have been extinguished).
45 In the event that (contrary to his Honour's view) the Djugan did have discrete rights or interests in the northern area the primary judge found that under the traditional laws and customs of the Yawuru community, the Yawuru community succeeded to those rights or interests. His Honour was satisfied, on the basis of the anthropological evidence and the evidence of the Yawuru elders, that principles of succession formed part of the northern and southern traditions practiced in the Yawuru claim area. He further said that whether there has been such a succession is a question of fact. He concluded in Rubibi (No 6) at[94]) that
The extensive connections and commonalities between the Djugan and the Yawuru, which led me to conclude that they formed one native title holding community, also lead me to conclude that, over time and in accordance with the traditional laws and customs acknowledged and observed by the Yawuru community (including the Djugan as a subset of that community), that community succeeded to any discrete or specific connection or association the Djugan had with the northern area. In this context, I have used the concept of a connection or association, rather than that of a native title right or interest, because of my view that such rights and interests were communal, rather than group rights or interests. However if, and to the extent that, the Djugan had any such rights or interests, I am satisfied that the Yawuru community has succeeded to them. In my view, the general requirements for succession to take place in accordance with traditional laws and custom, as discussed by the three anthropologists, have been sufficiently met by the connections and commonalities to which I have referred. Consequently, I am satisfied that the evidence supports a finding of succession by the Yawuru community.
46 The findings of the primary judge regarding the role of the Bugarrigarra, the practice of the northern and southern traditions in the Yawuru claim area and the relationship between the Djugan and the Yawuru were as follows. In his reasons for judgment in Rubibi (No 5) the primary judge described the Bugarrigarra as the "source" of the traditional laws and customs claimed to have been observed and acknowledged by the Walman Yawuru clan and the Yawuru community; constituting "the core of the cultural and spiritual existence of the Yawuru community and of the respective clans comprising the Yawuru community": at [49]. His Honour also stated at [53] that the religious and spiritual connection of the Yawuru community to their country flows from the Bugarrigarra. At [50]-[51] his Honour set out the following evidence regarding the nature of the Bugarrigarra:
[50] In Rubibi at 434 [113]-[114], I accepted the following evidence, which was adopted at the present hearing, in relation to the Bugarrigarra:
'[Patrick Dodson] described the Bugarrigarra as the period in which all the features (including soaks that provide water and enable people to inhabit a location) were placed upon the land; and when the law, the kinship structures and languages were given to the people inhabiting that land. Mr Dodson said it was a period that goes back to before anything that can be thought of.
…Mr Dodson explained the Bugarrigarra story associated with Kunin and other Yawuru land. In substance, the Bugarrigarra story outlines the manner in which its two mythical heroes, along a track laid down by them, establish the peoples, the soaks, the ceremony grounds and the other physical features of the landscape in places located along the track. The mythical heroes then give the people already in the various locations their law, kinship system, language and food sources. Mr Dodson said that "they make the country from nothing, basically". In the Bugarrigarra story the mythical heroes travel along the track creating the social order and rules that are to govern the various peoples along the track. Thus, in the story, Kunin was established as an Aboriginal law ground and, once established in that way, although sacred objects may be moved to and from it, remains a law ground as it is "put there from Bugarrigarra". Likewise, the law ceremonies, by which Yawuru men are given secret esoteric knowledge of the Bugarrigarra (the second stage ceremonies), are prescribed during the course of the journey.'
[51] A similar explanation was proffered at the present hearing by Palmer [an anthropologist], who stated that the Bugarrigarra was:
'…a time before present when the earth, as we know it today, was modified by the actions of creative beings who roamed the land and performed deeds. These are now related in narrative, song and enacted in ritual. The creative beings also brought the language which is spoken by each community of people, named animals, birds and natural features, and brought customs, beliefs and religious observances. They were, then, creative, not just in the sense that they modified the landscape and rendered the physical world as we know it today, but because they also brought all aspects of practice, belief, custom and observance that can be described as culture. This period … is also a continuum of time, extending to the present, so the spiritual potency of the bugarigara is manifest today as it was in the far past.'
[52] Palmer further explained the Bugarrigarra:
'There is believed to have been a time before now which was both a enduring spiritual time, but also something which continues into the - into the present. It was a time during which extraordinary spiritual things happened which are now believed to provide the basis, the fundamental, the very foundations of the society that I studied. And there are many other aspects to this belief, but they're all wrapped up in this single term, "Bugarrigarra", for this community… It's perhaps the one most single - well, I - perhaps it's hard to say that it's the most single, but it's a most important and fundamental aspect of the applicants' belief.'
Later, Palmer said:
'I suppose the other thing about Bugarrigarra is that it - it defines and informs, in my observation, the applicants' views about the essential spirituality of the natural world around them, and of their points of - well, their - their articulation with it, their interaction with it.'
47 One of the State's contentions is that the primary judge confused the roles of the Bugarrigarra and the northern and southern traditions in the Yawuru claim area. His Honour made the following observations about the northern and southern traditions (see Rubibi (No 5) at [55]-[61] and [79]):