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Irving, George --- "Reclaiming the Heartland': Rubibi Community v The State of Western Australia" [2002] IndigLawB 44; (2002) 5(18) Indigenous Law Bulletin 19

‘Reclaiming the Heartland’:

Rubibi Community v The State of Western Australia

[2001] FCA 607 (Unreported, Merkel J, 29 May 2001) and
[2001] FCA 1553 (Unreported, Merkel J, 7 November 2001)

by George Irving

The Rubibi determination of native title over a traditional Aboriginal law ground, near Broome in Western Australia, put an end to the legal controversy surrounding a 25-year-old intra-Indigenous dispute. It also demonstrates the fallacy of the so-called ‘historical snapshot’ approach to issues of continuity in native title claims.

Background

On 2 July 1971 the State of Western Australia (‘the State’) created Reserve No 30906 (‘the Reserve’) for the purpose of a ‘Ceremonial Site’. The area of the Reserve was about 300 acres. Two years later, as a result of a change in the vesting of the Reserve from the Minister for Native Welfare to the Aboriginal Lands Trust, the purpose of the Reserve was changed to ‘Use and Benefit of Aborigines’. Some years later certain Indigenous persons who described themselves as ‘the Leregon clan of the Yawuru tribe’, sought to use the Reserve for residential and commercial purposes. In the face of opposition from the then senior lawmen who were responsible for the Ceremonial Site, and in direct contravention of a direction from the Aboriginal Lands Trust, the Leregon group built a number of structures on the Reserve.

In 1996 the Rubibi applicants lodged a native title claim over the Reserve on behalf of the Yawuru People and others, claiming exclusive possession of the law ground for ceremonial purposes. The Rubibi community subsequently negotiated a framework agreement with the State, which was designed to resolve a number of native title claims including the claim over the Reserve. The Leregon group lodged an overlapping claim over the Reserve and refused to sign the framework agreement. Their refusal to sign brought the native title negotiations to a standstill and the competing claims over the Reserve were scheduled for hearing.

The Case

In Rubibi Community v The State of Western Australia [2001] FCA 607 (Unreported, Merkel J, 29 May 2001), the primary contest was between the State and the Rubibi applicants and concerned two inter-related issues of fact: continuity of use and continuity of connection. The Rubibi applicants argued that the area of the Reserve is, and always had been, a law ground belonging to the Yawuru People (which included the Leregon applicants) and, as such, had been used for ceremonial purposes since time immemorial. The Leregon applicants argued that not all of the Reserve is a law ground.

Continuity of Use

This issue centred on the question of whether or not the evidence established that the claim area had in fact been used as a traditional Aboriginal law ground from the assertion of sovereignty in 1829 to the present day. The Rubibi applicants relied on historical documents, which suggested that the general area at least had been associated with traditional Aboriginal ceremonies in 1898, 1917, 1928 and 1953, as well as anthropological evidence associating the area with a word that remains in use by senior Yawuru lawmen to refer to the seclusion of initiates at a certain stage of their initiation ceremony. In addition, the Rubibi applicants relied on oral testimony from senior male and female Yawuru witnesses and senior lawmen from other communities to the effect that their elders had informed them that the claim area was a sacred place and that they had been involved in law ceremonies on the Reserve. Evidence was given by the current senior Yawuru lawmen to the effect that they frequently visited the law ground to ‘keep it safe’ and to protect ‘what is in the ground’.

However, the evidence also disclosed that there had been gaps in the use of the claim area for ceremonial purposes. In the previous thirty years it had been used for ceremonies on one occasion in 1980, one in 1990 and one in 1994. In addition there was some evidence to suggest that the Reserve had only come to be used as a law ground after 1947, following the relocation of certain sacred objects from a law ground situated some fifty kilometres south of the claim area. The State relied on this evidence to argue that the Court could not find that the area had been continuously used in the manner asserted by the Rubibi applicants.

Justice Merkel observed that if the individual items of historical, anthropological and oral evidence were considered in isolation, there might have been some force in the State’s argument. However, his Honour concluded that on the balance of probabilities, the evidence supported the view of the historical and traditional use of the claim area contended for by the Rubibi applicants.[1] His Honour held that ‘the obvious inference to be drawn from the traditional usage established by the evidence is that it was a continuation of prior use’ dating back to 1829.[2] His Honour also observed that ‘[t]he present case affords a good example of the danger of a Court accepting a ‘historical snapshot’ of the cessation of traditional practice or the observance of traditional law and custom’.[3]

Continuity of Connection

This issue concerned the question of whether or not the use of the law ground was by an identifiable traditional community from which the Rubibi claimant group is descended. The State contended that a shift in the mode of recruitment to the Rubibi community, from a patrilineal descent model to an ambilineal descent model, demonstrated that the community asserting native title today was fundamentally different from the community that was in occupation in 1829. Consequently, it was not an identifiable community that had maintained its connection to the claim area since the assertion of sovereignty in 1829.

Justice Merkel held that even if the relevant traditional community in 1829 was based on a patrilineal model, ‘the evolution to an ambilineal model was part of a process of the community’s evolution to its present traditional form, rather than the creation of a new community’.[4] Thus his Honour held that the definition of a traditional community cannot be ‘frozen in time’ but ‘must recognise the process by which a community’s traditional laws and customs evolve, respond and adapt to change’.[5] An example of such evolution was the process by which two men, Patrick Dodson and Joseph ‘Nipper’ Roe had been put ‘through law’ in a second stage ceremony without having been initiated in a first stage ceremony. His Honour observed:

The senior law man at the time was concerned about maintaining Yawuru culture and decided that the most appropriate way of doing so, and thereby preventing its disintegration, was to put Mr Dodson and Mr Roe, as two highly respected senior Yawuru men ‘through law’. While the process and its purpose was traditional, the mode of selection (putting uninitiated men through the second stage ceremony) was not. ... [This] was plainly an adaptation of traditional law and custom to meet changing circumstances. The process adopted had the purpose of maintaining traditional law and custom and, as the present case demonstrates, it has had some success in doing so.[6]

Similarly, his Honour had no difficulty with the fact that in contemporary society traditional marriage rules were ‘breaking down and becoming more difficult to enforce’.[7] His Honour held that ‘the skin [kinship] system continues to be recognised and accepted by the Yawuru as an integral part of their traditional and cultural life’,[8]...‘and governs the person’s role in rituals and ceremonial activities, such as burials, as well as behaviour towards others’.[9]

Justice Merkel, in support of his finding that the Rubibi applicants’ community constituted an identifiable community, relied on evidence of shared beliefs in a number of salient rules or characteristics that went towards the recognition of persons as members of a community having a traditional attachment to Yawuru land. These included:

Justice Merkel held that the link between the present community and the community using the law ground in 1829 was, on the balance of probabilities, proved by genealogies tendered on behalf of the Rubibi applicants and supported by their oral testimony, which demonstrated that ‘the Rubibi claimant group includes ancestral descendants of apical Yawuru ancestors’.[16] Accordingly, his Honour was satisfied that

...the members of the present Yawuru community claiming to hold native title constitute an identifiable traditional community that has continued, as such, to maintain its traditional connection with [the claimed area] as an Aboriginal law ground since 1829.[17]

The secondary contest in this matter was between the Rubibi applicants and the Leregon applicants, who contended that some parts of the claim area (on which they had built structures) were not part of the law ground. It was common ground between both groups that the Leregon applicants are a subgroup of the Yawuru people and as such were entitled to participate in the benefit of the native title rights and interests held by the Rubibi claimant group. Justice Merkel found that the whole of the claim area was a Yawuru law ground and that the native title held by the Yawuru community conferred upon them the rights of occupation, use, possession and enjoyment of the area, as against the whole world, ‘for ceremonial purposes’.[18] His Honour was ‘not satisfied...that the Leregon applicants have established any independent right to any other native title rights or interests in relation to the claim area’.[19]

The subsequent decision of Rubibi Community v The State of Western Australia [2001] FCA 1553 (Unreported, Merkel J, 7 November 2001) dealt with the issue of whether the Leregon applicants were entitled to use the structures or to resist their removal from the determination area. After considering the documented history of the matter his Honour found that although the Aboriginal Lands Trust had at one time resolved to grant a lease to the Leregon group, a precondition for the grant was the approval of the Minister for Aboriginal Affairs. The Minister had refused the grant ‘as a result of the dispute within the Yawuru community over the use to which the claim area may be put’.[20]

Accordingly, his Honour held that the Leregon applicants had failed to establish ‘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’.[21] It followed from those conclusions that there was ‘no legal impediment to the Minister removing the Leregon structures...’.[22]

George Irving is a barrister based in Perth working in native title and Aboriginal heritage law. He appeared as co-counsel in both Rubibi trials and was previously the principal legal officer of the Kimberley Land Council.

[1] Rubibi Community v The State of Western Australia [2001] FCA 607 (Unreported, Merkel J, 29 May 2001) [76].

[2] Ibid [79].

[3] Ibid [84].

[4] Ibid [142].

[5] Ibid [136].

[6] Ibid.

[7] Ibid [122].

[8] Ibid.

[9] Ibid [119].

[10] Ibid [142].

[11] Ibid [105].

[12] Ibid [109]-[111].

[13] Ibid [113]-[118].

[14] Ibid [119]-[123].

[15] Ibid [124].

[16] Ibid [159].

[17] Ibid [161].

[18] Ibid [184], [193].

[19] Ibid [184].

[20] Rubibi Community v The State of Western Australia [2001] FCA 1553 (Unreported, Merkel J, 7 November 2001) [15].

[21] Ibid [59].

[22] Ibid.


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