The State of Western Australia v Sebastian [2008] FCAFC 65

THE STATE OF WESTERN AUSTRALIA, FRANK SEBASTIAN AND OTHERS (ON BEHALF OF THE RUBIBI PEOPLE) V MARGARET ROBINSON, EDWARD ROE AND NUGGET MATSUMOTO (ON BEHALF OF THE WALMAN YAWURU) COMMONWEALTH OF AUSTRALIA THANGOO PTY LTD TELSTRA CORPORATION LIMITED WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (INC) and SHIRE OF BROOME WAD 137 of 2006 SUMMARY In accordance with the practice of the Federal Court in certain cases of public interest, the Court has prepared a Summary to accompany the judgment that is to be delivered today. However, it must be emphasised that the Summary forms no part of the judgment. The only authoritative statement of the Court's reasons is the judgment itself. This Summary is intended to assist in understanding the principal conclusions reached by the Court, but is necessarily incomplete. The published Reasons for Judgment and this Summary will be available on the internet www.fedcourt.gov.au. The State of Western Australia v Sebastian [2008] FCAFC 65 There were two competing claims for a determination of native title in respect of land and waters in and around Broome, Western Australia. The primary judge, Merkel J decided that the Yawuru claimants (the Rubibi people) possessed communal native title rights and interests in the whole of their claim area, and made a determination in their favour in respect of the whole of their claim area, subject to particular areas in the Broome township where native title had been extinguished. His Honour found that the competing claimants, the Walmun Yawuru, who claimed an area within the larger claim area of the Yawuru, were a sub-group of the Yawuru claimants and so did not separately possess native title rights and interests, although they held special attachments to and responsibilities for certain areas or sites within the Yawuru claim area. On the appeal, the State argued that the northern portion of the Yawuru claim area was traditionally held by the Djugun people who were separate from the Yawuru people. The State also argued that the Yawuru claimants, because they have a cognative descent system, no longer had an interest in relation to the claim area under traditional laws and customs because traditionally they operated under a patrilineal descent system. The Full Court rejected both those contentions. On the basis of the evidence accepted by the trial judge, the Full Court concluded that the findings of the trial judge should be sustained, so the determination of native title rights and interests in favour of the Yawuru claimants will stand. The Full Court also rejected the appeal of the Walman Yawuru. On the basis of the evidence accepted by the trial judge, the Full Court upheld the findings about the status of the Walmun Yawuru claimants and about the nature and extent of their attachment to and interest in certain sites and areas within the claim area. There were seven separate issues raised by appeal or cross-appeal covering findings of the trial judge about the extent of extinguishment of native title rights and interests in part of the Yawuru claim area. Two issues are of general significance. One is whether s 47B of the Native Title Act 1993 (Cth) could be applied to the area of the Broome town site so as to be available to save any native title rights and interests within the Broome town site from being extinguished simply by the proclamation of the township of Broome. The Full Court has affirmed the decision of the trial judge that s 47B was capable of applying to areas within the proclaimed township. Secondly, the Yawuru claimants cross-appealed against the finding that any native title rights and interests in that part of the intertidal zone of the determination area as vested in The Minister for Transport pursuant to s 9 of the Marine and Harbours Act 1981 (WA) were thereby extinguished. The Full Court agreed with the conclusion of the trial judge. The remaining issues concerning extinguishment concerned findings of fact by the trial judge upon which native title rights and interests were extinguished in certain parts of the Broome town site. The findings have been upheld by the Full Court save for conclusions that Reserve 631 had been validly declared, that native title had been wholly extinguished over the whole of the area reserved for the Broome Cemetery, and that the Yawuru claimants did not occupy areas 2735, 2736 and 2738 at Kennedy Hill when this application was made. The Full Court has allowed the parties some time to consider its reasons and to propose the form of orders which should be made to give effect to them.