Court of Appeal (WA)|1999-06-15|Before: Mr J, Kennedy J, Wallwork J, Murray J

Underwood & Ors v Gayfer & Anor [1999] WASCA 56 (15 June 1999)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : UNDERWOOD & ORS -v- GAYFER & ANOR [1999] WASCA 56

Aboriginals - Land rights - Fishing with nets during closed season contrary to Fisheries Act 1905 (WA) - Claim to traditional right to fish

Appeal and new trial - General principles - Error of law - Failure to give adequate reasons for decision - Retrial ordered

Matter remitted for hearing before another Magistrate in the Broome Court of Petty Sessions

Appellants (Defendants) : Mr L W Roberts-Smith QC, Mr R H Bartlett & Ms A M Sheehan

Respondents (Complainants) : Mr R E Cock QC & Mr J A Thomson

Appellants (Defendants) : Aboriginal Legal Service of Western Australia (Inc)

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Calder v Attorney General of British Columbia [1973] SCR 313

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Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249

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Re Coldham; Ex parte Brideson [1990] HCA 36; (1990) 170 CLR 267

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Delgamuukw v Queen in right of British Columbia (1991) 79 DLR (4th) 185

Delgamuukw v Queen in right of British Columbia (1993) 104 DLR (4th) 470 CA

Delgamuukw v Queen in right of British Columbia (1997) 153 DLR (4th) 193 (SC)

Derschaw v Sutton (1996) 17 WAR 419

Dillon v Davies (1998) 156 ALR 142

Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5; (1990) 168 CLR 594

Eaton v Yanner, unreported; Qld CA Appeal 10389 of 1996; 27 February 1998

Fairbank v Jones (1975) 10 SASR 367

Fejo v Northern Territory (1998) HCA 58; (1998) 72 ALJR 1442

Gordon M Jenkins & Associates Pty Ltd v Coleman [1989] FCA 245; (1989) 87 ALR 477

Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development (1979) 107 DLR (3d) 513

Harper v Minister for Sea Fisheries [1989] HCA 47; (1989) 168 CLR 314

Horman v Bingham [1972] VicRp 2; [1972] VR 29

Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168

Kruger v The Queen (1977) 75 DLR (3d) 434

Mabo v Queensland (No 1) (1988) 166 CLR 186

Minister for Primary Industries and Energy v Davey (1993) 119 ALR 108

Re Paulette and Registrar of Titles (No 2) (1973) 42 DLR (3d) 8

R v Muratovic [1967] Qd R 15

Spokane Tribe v United States (1963) 163 Ct Cl 58

St Catherines' Milling (1888) 14 App Cas 46

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Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461

Te Weehi v Regional Fisheries Officer [1986] NZHC 149; [1986] 1 NZLR 680

Turtle Mountain Band of Chippewa Indians v United States (1974) 490 F 2d 935

Upper Chehalis Drive v United States (1957) 155 Fsupp 226

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Yorta Yorta Aboriginal Community v State of Victoria, unreported; FCA (Olney J); VG 6001/1995; 18 December 1998

1 KENNEDY J: I have had the advantage of reading, in draft, the reasons to be published by Wallwork J, with which I am in agreement.

2 On the final page of his judgment, the learned Magistrate expressed a number of conclusions. In particular, he found that there were two distinct groups of Aborigines in the general area of Broome when this State was colonised. Those groups were the Djugun and the Yawuru people. His Worship accepted the views of Norman B Tindale in his work Aboriginal Tribes of Australia, published in 1974 and based, it would seem, to a significant extent upon field trips undertaken by him in the 1920s and 1950s.

3 In Tindale's opinion, the Djugun Aborigines and the Yawuru Aborigines were two separate tribes with a common territorial border. His Worship considered it was clear, based on Figure 37 in Tindale's book, that each of the appellants was fishing within the territory of the Djugun whilst not being a member of the Djugun group. His Worship then went on to quote, without commenting in any way upon them, two passages from the cross-examination of Dr P J Sullivan, an anthropologist, who had been called by the appellants and who was the only expert witness actually called to give evidence. His Worship merely noted that Dr Sullivan did not agree with Tindale's opinion. He made no attempt to explain why he did not agree with Dr Sullivan or to examine his reasoning.

4 Then, having quoted extensively from Sutton v Derschaw (1995) 82 A Crim R 318 and R v Derschaw (1996) 90 A Crim R 9, which included a lengthy quotation from Brennan J in Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, the learned Magistrate expressed the view that there was no evidence capable of giving rise to a finding that the appellants, or any of them, had a right to fish where they had. This appears to have been on the basis that "the lack of evidence that the [appellants] or any of them were Djugun or descendants of the Djugun people was fatal to their claim". He also expressed the view that the evidence of Dr Sullivan was insufficient to establish any historical basis for the appellants' claim. His Worship gave no adequate reasons for rejecting Dr Sullivan's conclusion.

5 In my respectful opinion, for the reasons expressed by Wallwork J, the absence of adequate reasons in the judgment has led me to conclude that the proper course is to set aside the convictions and to remit the complaints to another Magistrate in Broome for rehearing. It is regrettable that it is necessary to pursue this course, but I do not consider that it is possible for this Court to make its own findings of fact based simply upon the material before us without having seen and heard the witnesses. The appeals should be allowed accordingly.

6 WALLWORK J: These are reasons for judgment after the hearing of an appeal by four persons who were convicted in the Court of Petty Sessions of fishing with nets in waters near Broome, Western Australia, in December 1994 contrary to the requirements of a Notice of the Minister pursuant to the Fisheries Act 1905 WA ("the Act").

7 The four appellants had used a net to catch fish during a seasonal closure contrary to s 12(1)(b) of the Act. The appellant, Underwood, was observed by Fisheries officers as he retrieved a net strung between a mangrove tree and a star picket in Roebuck Bay. The appellants, Edgar and Bernard, were observed by Fisheries officers waist deep in water and dragging a net in Roebuck Bay. The appellant, Watson, admitted to Fisheries officers that he had set a net at Willie Creek. All the appellants had caught a small number of fish. At the hearing of the charges against them, they admitted catching the fish as alleged by the prosecution: 13 fish in the case of Underwood; a small quantity of fish in the case of Edgar and Bernard; four fish in Watson's case. However, they claimed in their defence they had a native title right to fish.

8 In his reasons for decision after hearing the evidence the learned Magistrate referred to evidence which had been given by Dr Sullivan who is acknowledged to be an expert anthropologist. His Worship said that Dr Sullivan had previously produced reports on Aboriginal issues in the Broome area. Dr Sullivan was of the opinion that the relevant cultural group which had existed prior to colonisation was a group of Yawuru speaking Aborigines and that the dialectical difference between Djugun ways of speaking and Yawuru ways of speaking merely identified sub-groups within the main group.

9 His Worship in his reasons for decision said that in cross-examination Dr Sullivan had been asked about the writings of an anthropologist, Mr Norman B Tindale, the author of "Aboriginal Tribes of Australia" (1974 University of California Press). His Worship said that Mr Tindale considered that the Djugun Aborigines and the Yawuru Aborigines were two separate tribes with a common territorial border. His Worship referred to a plan, described as Figure 37, which was attached to his reasons. He said that the plan showed such a common territorial border.

10 His Worship said it was clear from a comparison of Figure 37 and exhibits A, B and E that each of the defendants had been fishing within the territory of the Djugun as shown in Figure 37. He then referred to p 241 of Mr Tindale's work where Mr Tindale had written:

Loc: Northern side of Roebuck Bay and coast north to Willie Creek, inland for about 15 miles (25 km). Some informants preferred the term Tjunung. This tribe virtually is extinct.

Alt: Tjugun, Tjukun, Djukun, Tjugan, Djukan, Jukan, Tjunung, Kularrabulu, Jukannganga (ie, Jukan speech).

Ref: Bischofs, 1908; Bates, 1914, 1915; Connelly, 1932; Elkin, 1933; Petri, 1939; Capell, 1940; Tindale, 1940, 1953 MS; Worms, 1953 MS; Nekes and Worms, 1953."

11 His Worship said that Dr Sullivan did not agree with Mr Tindale's opinion. He set out in his reasons for judgment an exchange between Dr Sullivan and Counsel, some of which is set out later in these reasons. In the course of that exchange Dr Sullivan had said that Mr Tindale's work was not an authority on the linguistic distinction between Aboriginal groups in Australia. He had said that Mr Tindale was not concerned with the linguistic group. Mr Tindale had wanted to say what a tribe was. Mr Tindale had ended up saying, "Well, look the tribe in Australia isn't like any of those things. We should really use an Aboriginal word." Dr Sullivan said that quite significantly Mr Tindale had said, "But there wasn't one."

12 Dr Sullivan was referred to the passage set out above concerning the Djugun. Dr Sullivan said he had a strong opinion on the matter. He could not think of any anthropologists who had a different opinion, but "no doubt we could find some." When he was squarely asked whether it was possible that, as Mr Tindale had said, there were Djugun people who were a separate group having a separate Law and separate ownership of land, Dr Sullivan replied: "On the basis of Hosakawa's study of linguistics, and I have to defer to him because he is a linguist and I am not, and because we are here talking about tribes as language groups rather than social entities, no, it's not possible." He then said, "It's not possible that they were a distinct group. He says they were a dialect of Yawuru." Dr Sullivan said that Mr Hosakawa had done his research about 1983.

13 His Worship then referred to the relevant Law as stated in Sutton v Derschaw (1995) 82 A Crim R 318. Without any further findings of fact, the learned Magistrate said that in his view there was no evidence capable of giving rise to a finding that the appellants, or any of them, had a right to fish in the waters of Willie Creek and Fisherman's Bend based upon traditional Laws and customs. His Worship found that a native title right to fish had not been made out. He said: "The lack of evidence that the defendants or any of them were Djugun or descendants of the Djugun people was fatal to their claim." He found that there had been two distinct groups of Aborigines in the general area of Broome when Western Australia was colonised in 1829. They were the Djugun and the Yawuru "as described by Tindale in his published work." His Worship found that the Djuguns solely had the fishing rights at the places where each of the defendants were fishing on the relevant days. He found that the evidence was silent as to the fishing rights of the Djugun group passed to the Yawuru group by reason of the Laws and customs of either of the Yawuru or the Djugun.

14 The learned Magistrate in part based his rejection of the appellants' claim to fishing rights on the premise that the Djugun people were a distinct group of Aborigines from the Yawuru and that the Djugun people had sole fishing rights at the places where the appellants had been fishing.

15 In my view the learned Magistrate did not give adequate reasons for finding that there had been two distinct groups of Aborigines in the area at the time of colonisation, being the Djugun and the Yawuru. Further his Worship's conclusion was contrary to much of the evidence which he had heard.

16 Evidence had been given at the hearing by Mr Joseph Roe, who was 53 years of age and lived in Broome. Mr Roe said that that he belonged to the Yawuru group. He said his mother's mother had been Yawuru and his father had been the custodian of the Yawuru Law. He himself had been put through Yawuru Law by Mr Mathew Gilbert, an elder who was the present custodian of the Law and authority for the Yawuru people. Mr Roe said that the Djuguns and Yawuru people were always connected. They spoke basically the same language. The two of them were living together "sort of thing."

17 Mr Frank Sebastian gave evidence that he was 59 years of age. He said that his mother was a Yawuru. His grandmother was a Yawuru and his great grandmother was a Yawuru. He had been told that where the appellants were fishing was Yawuru country and had been since the beginning of time. He said that Mr Mathew Gilbert was the senior Lawman. The senior women were Mrs Elsie Edgar and Mrs Thelma Edgar. He said that Djugun was the name of a clan, but they were all one Yawuru. "The clan looks after this area from Cunnan back to Willie Creek up to Lighthouse there ...but they all Yawuru." He said the old people had told him that. They had said that the Djugan people were just part of the Yawuru people. He said the land from Willie Creek to Gordon Bay was Yawuru country. He said that the Djugun was the name of the clan of the Yawuru people. They look after that area. He said, "They're under the clan what's named Djugun. They're Yawuru people." (102)

18 Mr Mathew Gilbert said in evidence that he was about 88 years of age. He lived in Broome. He belonged to the Yawuru people. His mother was a Yawuru. His grandfather and grandmother were Yawuru. He had been born in the bush. Yawuru Law was still there today. Yawuru people have a right to go fishing in Yawuru country. Mr Thomas Edgar had been through Yawuru Law. The other three defendants were allowed to fish in Yawuru country. Mr Gilbert said he was the boss of the Yawuru Law. He knows "all the Law for the blackfellas, songs and everything." Japanese had chased him out of Cunnan. Manila people were living there.

19 Mrs Cissy Djaigween, who was 57 years of age said she lived in Broome. She had been born at Beagle Bay. When asked what group of Aboriginal people she belonged to, she said: "I'm from Djugun Yawuru." The Djugun and the Yawuru practice the same Law. Her father was a Djugun - Djugun Yawuru. Djugun is a lighter language than Yawuru. She can understand Yawuru and Djugun. They have a different sound, but one meaning. When asked, "Do people think 'I am Djugun and you are Yawuru'?" she answered, "It doesn't matter because they are related through the skin." When asked, "Was there Djugun land and Yawuru land?" she answered, "Well, altogether as one. Sharing you know." There was Djugun land and Yawuru land "but they was all sharing one - I mean if there's a Law there you've got to share one - one Law between the family - I mean not the family but the tribe." There was no fighting. "They recognised one another as a family you know."

20 Mrs Mary Tarran gave evidence that she was born Mary Bernard, formerly Djaigween. Her parents had changed her name when she was about four or five years of age. She had been born at Beagle Bay Mission. Her two grandfathers from her mother and father's side were Djugun Yawuru Yawuru. Her mother was Mrs Cissy Djaigween. Mrs Tarran was the coordinator of the Buggarragarra Cultural Centre which represents eight language groups in the Broome region. That region covers from One Arm Point down to Bidgidanga. When asked what she had to say about Djugun Yawuru Mrs Tarran said, "My understanding is they are the same. Djugun is a lighter speaking ..." She said, "...Djugun is Yawuru as far as my family has known ... ." "They made it a separate tribe. That was done in the fifties, I think, by Tindale...just to put it on the map - it looks separate." "...I think it was that Tindale, American bloke." When she was shown the map by Mr Tindale which showed different areas she said, "I reckon he got it wrong." That was because what her people had "been telling me." She said she was "talking from my two grandfathers, Paddy Djaigween and Bernard Bunduck... ." They had told her that. Her grandfather was in his seventies --- eighties. She did not think his birth was recorded. She said she knew where they came from and the stories connected with the country they were associated with. Also her mother's grandfather, Tommy Sadler, had told her that. In cross-examination Mrs Tarran was asked about the language and she said, "...if there is ever a study of Djugun, you will find that the Djugun language was mainly Yawuru." When she was asked about Mr Tindale's findings that the Djugun people were almost gone she said, "Djugun people wasn't almost gone. There was plenty...there's plenty Djugun people...we still Djugun people for the people who born here, who continue to be born from Yawuru people. They are Djugun people as far as we know." She was asked, "So that you think of the Djugun people as Yawuru people?" She said, "That's right." She was asked, "So far as you understand, Djugun is a dialect of Yawuru?" She said, "Yes." She was asked, "So you do not consider from what you understand the Djugun people are separate from the Yawuru people?" She said, "It's not separate from Yawuru people." She said they were the same people, the same language and the same Law.

21 Mr Joseph Edward Roe said in evidence that Mr Paddy Roe was his grandfather. He had been the boss of their Law and customs. He had handed over that responsibility to him. Mr Paddy Roe had been born in 1912. Mr Joseph Roe said that for 22 years of his life he had had to study Aboriginal Law. When asked to explain the significance to him of the area around Willie Creek, he said, "Well that's where I've been through the Law, around Willie Creek."

22 In cross-examination Mr Roe said that his people were the Goolarabooloo group. He said the old people who were Djugun gave that country and the responsibility to his grandfather. (158) He said he and Mr Mathew Gilbert did not interfere with one another. "If he wants my help that side, I'll stand behind him ... if I want help this side, he'll stand behind me." He said, "There's two Laws, there's one community." When asked was there any difference between the Law that he was responsible for and the Law that Mr Gilbert was responsible for he said, "Yes. It's two different." He was referred to a claim at the Register of Native Title Claims which covered "land and waters within the Broome Townsite and extending north to Willie Creek to include vacant Crown land, various reserves and the southern portion of Waterbank Pastoral Lease." The people in that claim included Mathew Gilbert, Francis Djaigween, Cecilia Djaigween, Paddy Roe, Phillip Roe, Frank Sebastian, Joseph Roe, Ron Carter and their respective family groups "and on behalf of all other Aboriginal people and their respective family groups who are connected to the claim area according to their acknowledged Laws and customs." He was asked, "You agree that those people are part of the one community you are talking about?" His answer was, "Yes." He said he would describe that claim as Ribibi and it consisted of people who are "Gulala, Balu, Yawuru and Djugun."

23 Mr Thomas John Edgar, who is 41 years of age, said that he came from the Yawuru group of Aboriginal people. He was initiated to the Yawuru Law in 1969 at Fisherman's Bend by the old people. In cross-examination he agreed that Mr Gilbert was the "boss Law man" for the Yawuru people.

24 Mr Justin Bernard said that his father and uncle were Yawuru people. He said his father described himself as Djugunyawuru or Yawuru. He said he used to go fishing with his grandfather and father in the Willie Creek, Crab Creek area, near where he was caught fishing on this occasion.

25 Mr William Watson said he was born in Darwin. His father came from Melville Island. He had come to the Broome area when he was about 16. He had married Stella Roe who was now Stella Watson. She was a cousin to Joseph Roe. He had been put through the Law up in Willie Creek "the same one that Joe went through." Most of his fishing was done up north towards Willie Creek, Bart Creek, Quandong, Prices Point. Mr Roe was his brother-in-Law and was the chief Law man for that area on Willie Creek.

26 Mr Leslie Underwood said he had been born in Mullewa. His mother came from Nookanbar, via Fitzroy. She belonged to the Bunaba group. He had been brought up in Beagle Bay. He came to Broome about 1960. His recently deceased brother had been married to Elsie Edgar, who was a Yawuru woman. He considered the country where he was caught fishing to be Yawuru country. He had been around with the Yawuru people for about 30 years. When he went fishing he used to be with the Yawuru people themselves. He said they had their Law grounds "out there."

27 Dr Patrick Sullivan, who is conceded by the prosecution to be an expert anthropologist, obtained his PhD in Anthropology from the Australian National University in 1991. He said in evidence that he was then a Research Fellow at the North Australian Research Unit of the Australian National University. His experience in the Kimberleys had been quite extensive. He said he had begun his studies of Aboriginal people in the Kimberley before he enrolled for his PhD in 1981. He had arrived in the Kimberley to begin field work in 1983. Amongst other things, Dr Sullivan said that he considered himself to have expertise in relation to Aboriginal society generally, as a result partly of his academic studies and also his long and continuing involvement with Aboriginal people in the Kimberley region - and to some extent outside that region.

28 The learned prosecutor said that he had "no difficulty with Dr Sullivan as an expert anthropologist." He said, "The difficulty is in how much weight can be attached to whatever evidence he gives and that will only be established once the evidence is given."

29 Amongst other things Dr Sullivan said in evidence:

"In keeping with that, sort of, lack of knowledge and lack of understanding, in the very early period of colonisation and the early period of studies, say, up until about the 1940's - commencing in the 30's - very little was known for certain about Aboriginal social organisation. I think the most significant change has been our developing understanding of how complex it is." (217)

30 Dr Sullivan said, "We are still talking about how Aboriginal society is constituted...today, even though studies began 50 or so years ago." He said, "The tendency nowadays is to think more in terms of Aboriginal communities...I mean social communities in which there are a number of means of recruitment, or of memberships...and in which authority is relatively diffuse and difficult..."

31 Dr Sullivan said that there is an incredibly strong amount of authority exerted over ceremonial life and in particular, while ceremonies are being carried out. To some extent that filters through into ordinary social life. He was asked about the individuals who were authority figures in the areas of Cunnan and Law "up there at Willie Creek" and could he identify those relevant authority figures. He said he could. He identified Mr Mathew Gilbert and Mr Joseph Roe. He said that was not to say they were the only people with any authority in those areas of Law. He said several people could gain expertise in knowledge at various levels. It may end up in some cases where the number of people were very senior and knew a great deal. He was not confident to say at what level various persons were. It was not an assessment that he could make. He said authority from ritual diffuses itself into other aspects of Aboriginal society. He said, "There was a whole way of life - a whole way of relating to each other...ways of sharing food, sharing resources, the use of language, which 'is quite particular within the Aboriginal communities'...." (221) He said the structured authority becomes more ordered "on the Law ground itself where ceremonies are being carried out...that's the centre of it." He said, "I don't see any necessary and absolute link between a customary practice or traditional practice and the technology that is employed to carry it out." (225)

32 That is important when it comes to using nets and similar articles for fishing.

"The social context in which it occurred was the important thing in terms of the organisation of work and the relationships between the people involved in the task or the practice. Then you might look at the way that the product is regarded and conceived, of itself, as a result of the practice. Then you would look at the way the product is distributed and the relationships that are involved in that and that activity and are, themselves, actually brought into being by that activity...looking at all of those things, the technology involved becomes one of the lesser factors that you would take into account." (226)

"Well, as I have said, as somebody who has expertise in social practices, I don't have a problem with nets. I would be prepared to analyse the situation as being a traditional or a cultural practice if boats were used, or whatever. There is a strong similarity between the action of nets and between the action of stone weirs and other forms of fish traps."

35 When asked about the change from stone weirs to, for example, drag nets he said:

"I don't think it says anything about the question of social change in the community. It would seem to me that that is the important question in determining whether a practice is a traditional Aboriginal cultural practice."

"There is another question which is the adaption of behaviour, the adaption of practice and they are the adoption I suppose of technologies and of practices. And there you would look at whether that practice has been adopted along traditional lines; whether, although it's a new item in the cultural repertoire of the people, such as a vehicle or a shotgun or a net - is it being used in a manner consistent with traditional social relations?" (228)

37 In cross-examination Dr Sullivan was referred to the Tindale work and said he was quite familiar with it. When asked was it something of an authority on the linguistic distinction between groups in Australia, he answered "No." He said if you read the introduction of the volume in which Tindale tries to discuss in general terms the nature of a tribe, he was not concerned with the linguistic group. He was referred to what Tindale said about the Djugun people under "Location" being "Northern side of Roebuck Bay and coast north to Willie Creek, inland for about 15 miles (25 kilometres). Some informants preferred the term "Gungun. This tribe is virtually extinct."

38 Dr Sullivan thought Mr Tindale had done a field trip in the 20's and another one in the 50's. He said it could be that the Yawuru oral tradition had changed to include the Djugun within the Yawuru and there could be a number of other explanations. He said:

"On the basis of Hosakawa's study of linguistics, and I have to defer to him because he is a linguist and I am not, and because we are here talking about tribes as language groups rather than social entities, no, it's not possible that there were Djugun people as Tindale had identified, who were a separate group having a separate Law and separate ownership of land."

39 Dr Sullivan said, "It's not possible that they were a distinct group." He said that, "They were a dialect of Yawuru." He thought Mr Hosakawa had done his research in 1985 whereas Tindale had done his in the earlier decades of the century. He said, "We don't really know what he means when he says that the tribe is virtually extinct." He said that as part of his analysis of the Yawuru language, Mr Hosakawa says that it is made up of, I think, three distinct dialects, one of which is Djugun.

40 Dr Sullivan said that he had obtained information from Cissy Djaigween's brother "who died last year" and Mathew Gilbert and another man who died a few years ago.

41 Speaking of the Djugun people and the Yawuru, Dr Sullivan said, "We don't conceive of these people as two different groups." When asked whether he was able to say whether or not there was some sort of exclusive land tenure that was associated with either group he said, "I am convinced that there wasn't." He said that the Djuguns did not hold land rights as against the Yawuru.

"The evidence is, without going into the complications of what is meant by the term Yawuru people, that the people identified as Yawuru people were in this region when the earliest settlers came in, and we can rely on days and dates with that in the 1890's. It would be unreasonable to assume that the people camping there were other than Yawuru people." (261)

43 The extract from Mr Tindale's work was tendered through Dr Sullivan.

44 In re-examination when asked what evidence he had to support the proposition that the Djugun and the Yawuru were one group, Dr Sullivan said:

"I rely on a variety of evidence and certainly highly significant evidence is from a group who say that they are Djugun, who say that they can reproduce at least some of the Djugun language. They can demonstrate a spiritual connection with Djugun land; who say that there isn't any significant distinction between Djugun and Yawuru, and it's not a separate group but it's a group that is part of Yawuru. Now, if a group themselves identifies as Djugun and says they are part of Yawuru, that's pretty important information. Secondly we can go to the work of Comy Hosakawa."

45 Referring to a deceased Aboriginal man, Dr Sullivan said:

"Well, he was one man that I was referring to, who identified himself as Djugun. I think in fact at that point, the leader of the Djugun I suppose, and he did say the groups were all one. I was aware of his considerable distress when he saw an area of the land that he was responsible for disturbed, and I was aware that he died shortly thereafter. I am aware of the distress that that caused to his family. I am aware of the implications and cause and effect that that put...those circumstances."

46 Dr Sullivan's report which he had prepared before the hearing became exhibit 4. In the course of that report Dr Sullivan quotes Mr Hosakawa who he says has carried out the most recent thorough study of the local language. He said that Mr Hosakawa said:

"The traditional territory of Yawuru speaking Aborigines is located to the south, east and northwest of Broome, Western Australia...[In a footnote: This includes the so-called Jukun area]...The traditional residents of the Broome area proper (around the township, Cable Beach, Gantheaume Point, Fisherman's Bend and the northwest of Roebuck Plains) were Minyjirr...or 'Big Yawuru', whose language is usually referred to as Jukun."

"On the basis of my own genealogical research, and that of other anthropologists supervised by me, I can say that the defendants are indigenous and are the biological descendants (or in the case of William Watson and Gregory Underwood, a member of the same community as the biological descendants) of the original Aboriginal community."

48 Dr Sullivan sets out in his report the details of the families of the appellants (p 5). Dr Sullivan said it was not his view that Watson and Underwood were biological descendants of the original Aboriginal community.

49 In Mabo v Queensland (No 2) [1992] HCA 23; (1991-1992) 175 CLR 1 at 58 Brennan J said:

"Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs."

"Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. The common law can, by reference to the traditional laws and customs of an indigenous people, identify and protect the native rights and interests to which they give rise. However, when the tide of history has washed away any real traditional customs, the foundation of native title has disappeared."

"But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed."

52 With reference to the type of evidence required in cases concerning indigenous people, in Simon v R (1985) 24 DLR (4th) 390 at 407 Dickson CJ said:

"True, this evidence is not conclusive proof that the appellant is a direct descendant of the Micmac Indians covered by the Treaty of 1752. It must, however, be sufficient for otherwise no Micmac Indian would be able to establish descendancy. The Micmacs did not keep written records. Micmac traditions are largely oral in nature. To impose an impossible burden of proof would, in effect, render nugatory any right to hunt that a present day Shubenacadie Micmac Indian would otherwise be entitled to invoke ..."

53 In Delgamuukw v British Columbia [1991] 3 WWR 97, 205 (BCSCt) Chief Justice McEarchen said:

"In a communal claim of this kind I do not consider it necessary for the plaintiffs to prove the connection of each member of the group to distant ancestors who used the lands in question before the assertion of sovereignty. It is enough for this phase of the case ... for the plaintiffs to prove, as they have, that a reasonable number of their ancestors were probably present in and near the villages of the territory for a long, long time."

54 In Mason v Tritton (1994) 34 NSWLR 572 at 588 Kirby P said:

"... it is next to impossible to expect that Aboriginal Australians will ever be able to prove, by recorded details, their precise genealogy back to the time before 1788 ... it would be unreasonable and unrealistic ..."

"The lack of evidence that the defendants or any of them were Djugun or descendants of the Djugun people is fatal to their claim. The evidence of Dr Sullivan was insufficient to establish any historical basis for the defendants' claim...In my view and I find as facts there were two distinct groups of Aborigines in the general area of Broome when Western Australia was colonised in 1829. They were Djugun and Yawuru as described by Tindale in his published work. The Djugun solely had the fishing rights at the places where each of the defendants were fishing on the day..."

56 Those findings run counter to much of the evidence which was given at the trial, some of which is set out above in these reasons. The learned Magistrate's findings are supported to a degree by an extract from Tindale's work which was submitted into evidence during cross-examination.

"I find that as a fact that none of the defendants were the biological descendants of the Djugun group who exercised the fishing rights at Willie Creek and Fishermans Bend. The evidence was silent as to the fishing rights of the Djugun group passed to the Yawuru group by reason of the Laws and customs of either the Yawuru or the Djugun."

58 Those two findings were contrary to evidence which had been given at the hearing, some of which is set out above in these reasons.

59 In Lloyd v Faraone [1989] WAR 154 at 163 Malcolm CJ, when discussing the obligation of a trial Judge to give reasons for judgment, quoted from the reasons of Jordan CJ in Carlson v King (1947) 64 WN (New South Wales) 65 at 66 where Jordan CJ said that a trial Judge had a duty to set out the reasons for arriving at the decision. Malcolm CJ said:

"Those reasons must be revealed to such an extent as will enable an appellate Court to consider and determine whether or not the judgment is erroneous."

"In my opinion, ... where there is not only an absence of explanation, but a failure on the part of the learned trial Judge to make relevant findings of fact essential to the task of assessment, in circumstances where credibility was in issue and the appellate court cannot review the evidence and make its own findings, there is an error of law which would justify the appellate Court setting aside the judgment."

61 In Frichot v Zalmstra, unreported FCt of WA; Library No 981291; 13 May 1998 Owen J (with whom White J agreed) said:

"In Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 702 the Court indicated that in a position such as we have here the appealable error lies not in the result of the trial but in the failure to give relevant reasons in circumstances which deprive a party of an effective right of appeal conferred by statute.

To that I would add that in our judicial system, where proceedings are to be conducted in public, the duty to give reasons is an adjunct to or in some respects a part of the overall obligation to afford to litigants procedural fairness. Put in that way, in addition to securing the statutory right of appeal, the obligation to give adequate reasons is part of the fairness to a litigant who comes to the court to know why it is that he or she succeeded or has been unsuccessful. ... [T]hat does not mean that every piece of evidence, every exhibit, every word that has fallen from counsel during submissions must be alluded to expressly or even by implication in the course of giving reasons. It would neither be necessary nor feasible for an obligation of that nature to be imposed on trial courts.

It is sufficient if the reasoning process which led to a result is disclosed with sufficient certainty to enable the litigant to know why it is that the result ensued and to ensure that the statutory right of appeal has been secured."

62 Owen J also said in Garret v Nicholson, [1999] WASCA 32:

"To the authorities mentioned...I would add Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259, 277-281; Danagher v Racing Penalties Appeal Tribunal (1995) 13 WAR 531 at 539-40, 548 and Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639 at 640, 647. I would also add that it is necessary to look at the reasons as a whole to see if they give the sense of what was intended in a way that achieves the results to which I have referred."

63 In my view, the learned Magistrate in this case did not sufficiently refer to the evidence which was given by the various witnesses, nor in my view were there sufficient reasons given by his Worship as to how he reached his conclusions.

"Ground 2: The learned Magistrate erred in Law and fact in holding that there were 2 distinct groups of Aborigines in the general area of Broome and that the Djugun group solely had the fishing rights at the places where each of the Appellants was fishing.

(a) There was uncontradicted sworn evidence from the Appellants, senior members of the contemporary Aboriginal community and Doctor Sullivan, that inter alia;

(i) Djugun and Yawuru people are sub-groups of the same social group, sharing a common language with dialectical differences;

(ii) members of the Aboriginal community, including Sissy Djaigween and Mary Tarran, both of whose evidence was uncontradicted, have Djugun Yawuru ancestry; and

(iii) the Yawuru and Goolarabooloo peoples have native title to the land and waters as one community.

(b) The learned Magistrate misconceived the evidence in that, contrary to his understanding and findings, a book and a map authored by Norman B Tindale 'Aboriginal Tribes of Australia' (1974, University of California Press) do not establish that the Djugun and the Yawuru were 2 distinct groups of Aborigines in the general area of Broome when Western Australia was colonised in 1829, nor that the Djugun solely (ie to the exclusion of the Yawuru) had the fishing rights at the places where each of the Appellants was fishing at the relevant time(s).

(c) The learned Magistrate erred in Law and in fact in taking judicial notice of the Tindale text and map so as to make a finding of fact on a critical contentious issue and in the face of the uncontradicted sworn evidence of Doctor Sullivan on that issue.

(d) The learned Magistrate erred in Law and in fact in placing no weight upon the acceptance by the Registrar of the National Native Title Tribunal of the Application for a Declaration of Native Title lodged by the Aboriginal community of which the Appellants are members."

65 In my view and leaving aside Particular (d) above, Ground 2 of the Appeal has been made out. The learned Magistrate did not give adequate reasons for the relevant findings on these matters. He therefore erred in law.

66 With respect to the other grounds of appeal, Ground 1 without the particulars, is:

"The learned Magistrate erred in fact and in Law in holding that:

(1) there was no evidence before him capable of giving rise to a finding that the Appellants or any of them had a traditional common Law right to fish in the waters of Willies Creek and in the waters of Fisherman's Bend respectively;

(2) the Appellants' native title right to fish was not made out; and

(3) the evidence of Doctor Sullivan was insufficient to establish any historical basis for the Appellants' claim."

67 During the hearing evidence was given by Mr J Roe (53 years of age) as to the customs and methods of the Aboriginal people when fishing in the relevant area. He told of the necessity in certain cases to get the permission of the Yawuru people before people went fishing (89).

68 Mr Sebastian (59 years of age) told of the rights of the Yawuru people to fish, hunt and camp. He also spoke of the customs and methods used. Mr Gilbert (about 88 years of age) gave evidence on those matters as did Mrs Djaigween (57 years of age).

69 Mrs Tarran (37 years of age) gave evidence that "we know ourselves as coastal peoples. We have always relied on the sea." Mrs Tarran told of learning how to fish from her mother and grandmother and of the customs associated with fishing. Mr J E Roe gave evidence on the ways Aboriginal people fished and shared their fish.

70 Evidence was given by the appellants Edgar, Bernard, Watson and Underwood on these questions.

71 In my view it is not possible for this Court to decide the questions raised by this Ground of Appeal because the necessary findings have not been made concerning the evidence which was heard by the learned Magistrate. Similar considerations apply to the remaining grounds of appeal which are all dependent upon necessary findings of fact.

72 The convictions must therefore be set aside and the matter sent back for retrial before another Magistrate. This is unfortunate in the light of the extensive submissions which this Court has heard. However, this Court has not seen the witnesses and cannot make findings which to a considerable extent will depend on credibility.

73 MURRAY J: I agree generally with the reasons published by Kennedy and Wallwork JJ and with the orders they propose.

Underwood & Ors v Gayfer & Anor [1999] WASCA 56

At a glance

Court

Decision date

Before

Catchwords

Source

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Judgment (162 paragraphs)

Underwood & Ors v Gayfer & Anor [1999] WASCA 56 (15 June 1999)

Parties

Legislation Cited (1)

Cases Cited (36)