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

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

The Full Court held that (1) the Yawuru community possesses communal native title rights and interests in relation to the whole claim area, including the northern portion, as the Djugan were either a sub-group or, alternatively, their rights had passed to the Yawuru community through succession under traditional law; (2) the existence and content of Yawuru laws and customs at sovereignty, and their evolution to include ambilineal/cognatic descent and adoption/incorporation, did not break the continuity required for native title; (3) the claim of the Walman Yawuru for separate clan-based native title rights failed, as their special attachments and responsibilities did not constitute group...

Parties
Appellant/first Cross Respondent: The State of Western Australia; First Respondent/first Cross Appellant: Frank Sebastian and Others (on behalf of the Rubibi People); Second Respondent/second Cross Appellant: Margaret Robinson, Edward Roe and Nugget Matsumoto (on behalf of the Walman Yawuru); Third Respondent: Commonwealth of Australia; Fourth Respondent: Thangoo Pty Ltd; Fifth Respondent: Telstra Corporation Limited; Sixth Respondent: Western Australian Fishing Industry Council (Inc); Second Cross Respondent: Shire of Broome
Jurisdiction
Australia
Judgment Date
02 May 2008
Procedural Posture
Federal Court Appeal (native Title) / Full Court Judgment on Appeal and Cross Appeals; Orders Not Finalised, Reasons Delivered
Outcome
Appeals by the State and by the Walman Yawuru dismissed in relation to native title issues; cross-appeal by Yawuru claimants partly allowed regarding certain extinguishment findings; orders stood over for proposed forms and finalisation.
Legal Topics
Determination of Native Title, Extinguishment of Native Title, Membership of Native Title Holding Group, Succession of Native Title Rights, Interpretation of S 47 B Native Title Act, Adoption/incoporation Into Community
Native Title Aboriginal and Torres Strait Islander Law Administrative Law Determination of Native Title Extinguishment of Native Title Membership of Native Title Holding Group Succession of Native Title Rights Interpretation of S 47 B Native Title Act +1 more

Case Brief

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Parties

The State of Western Australia

Appellant/first Cross Respondent

Frank Sebastian and Others (on behalf of the Rubibi People)

First Respondent/first Cross Appellant

Margaret Robinson, Edward Roe and Nugget Matsumoto (on behalf of the Walman Yawuru)

Second Respondent/second Cross Appellant

Commonwealth of Australia

Third Respondent

Thangoo Pty Ltd

Fourth Respondent

Telstra Corporation Limited

Fifth Respondent

Western Australian Fishing Industry Council (Inc)

Sixth Respondent

Shire of Broome

Second Cross Respondent

Procedural Posture

Federal Court Appeal (native Title) / Full Court Judgment on Appeal and Cross Appeals; Orders Not Finalised, Reasons Delivered

Legal Issues

  1. 1 Whether native title existed in respect of the land and waters around Broome, Western Australia claimed by both Yawuru and Walman Yawuru claimants
  2. 2 Whether the Yawuru claimants were entitled to a communal native title over the area, including northern area associated with Djugan people
  3. 3 Whether traditional laws and customs accommodated evolution from patrilineal to ambilineal descent

Ratio Decidendi

The Full Court held that (1) the Yawuru community possesses communal native title rights and interests in relation to the whole claim area, including the northern portion, as the Djugan were either a sub-group or, alternatively, their rights had passed to the Yawuru community through succession under traditional law; (2) the existence and content of Yawuru laws and customs at sovereignty, and their evolution to include ambilineal/cognatic descent and adoption/incorporation, did not break the continuity required for native title; (3) the claim of the Walman Yawuru for separate clan-based native title rights failed, as their special attachments and responsibilities did not constitute group...

Court Disposition

Appeals by the State and by the Walman Yawuru dismissed in relation to native title issues; cross-appeal by Yawuru claimants partly allowed regarding certain extinguishment findings; orders stood over for proposed forms and finalisation.

Orders

  • Proceeding stood over to a date to be fixed for the making of final orders; parties to provide agreed or competing minutes of orders with brief submissions by specified date.